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Shewing 7'he Sentiments of the Bulk of the Freeholders of Ca-> nada concerning the late Quebeck-A6l; with fome Remarks on the Bofton>Charter A£l ; and an Attempt to (hew the great Expediency of immediately repealing both thofe A^s of Parliament, and of making fume other ufeful Regulations and Conceffions to his Ma- jefTy's American Subje^s, as a Ground for a Recon- ciliation with the United Colonies in America. VOL. 11. LONDON: Sold by B, WHITE, Horace's Head, Flert-Strect. *ii "*.' M.DCC.I'XXIX* %: i hf K>a-.->>-.f'^-*-.ft.^rrH.nf: ■1.1 "f K •' V.'. . i -r rr ur r { ^'^'H :^ ' K ■>. ) t iiroM j-jfi'^ -• •< .*. 1 jfr.^rt f. ,>. .-"J" nV HulW,. ;^ -V ■^ •^••sa^.v-.WM^jifaKjt.'-:-,^.. ^»>^.-.»<*fc.»AA.»'Sv«»Stt& • '■^■ .^ •* 4 ■ *- S/*. il^ ^, . ft -v - ♦'.) f*.. J . »>>. /. :\ ■: I ;c^ ri.'.'.v »>ii . ' 1 f. •1 ;>i'- M>K ^,- ri.i '(:-j :< •_ Vv w^ exa; 1 1 • •.*■ it\.;^.^'/\'AO r^oV^^ 'i \/^^-'* .^'\ - -^ "7^>;. !..k .tC . ,: -V ^v^ PREFACE. i «* « J I ^ ■-> i.- ' '- V . » ^ • -/ 1 . ' t J »i I- Kf THIS fecond Dialogue of 7U 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 do<9: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, Hat^ upon the conquejl of any country by the Britiflj armsy and a fubfequent cejfton of it by its former fovereign to the Crown of Great-Bri^ tain^ the king becomes the fole legiflator of fuch country^ and has a right to iiahe laws for ^ and impofe taxes on, th$ u : '■ inhabit '*. -♦. VI PREFACE. i hthahitants of it by his Jingle authority^ or without the concurrence of the par^ liament ; unlefs the /aid authority Jhall have been previoujly limit ed^ or rejirain-- edy by an aSi of parliament antecedent to fuch conqueji and cejfton.^^ This is the main fubjedl 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 defcribcd as follows. The II firft pages are taken up ki ftating the two different opinionai which lawyers have entertained upon this fubjedl, and the do<ftrine laid down by Lord Mansfield in delivering the aforefaid judgement of the Court of King's Bench. -The 1 2th and 13th pages containt a ftate of the three grounds, or rea- fons, afligned by Lord Mansfield in fupport of the faid doSrine ; to wit, I ft, The king's right to make war and \i ? R 2 F A C E. vii ftnd peace ; adly, The practice which has taken place with refpeft to coun- tries conquered by the Crown of England ; and 3dly, The opinions of judges and other lawyers of eminence upon the fubjeA. Pages 13, 14, 15, 16, 17, 18, 19, 20, are employed in examining the firft of the faid three reafons, which ftated in Lord Mansfield's own IS words in page 15, . Page 21, &c. — 40, are employed in fliewing the importance of this queftion to all the fubjefts 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 doftrine. Pages 41, 42, 43, and 44, contain {ati argument that has been ufed by fome private lawyers in fupport of Lord Mansfield's opinion. This ar- gument is anfwered, and the fubjeft further examined upon the footing of reafon and the general principles of . ■ law, I: 111 • •• Vlll PREFACE. 1 1. law, in the following pages down to page 63 ; which concludes that firft part of the difcuflion 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. ^ ■ v .->- In pages 65 and 66 Lord Manf- field's aflertions concerning Ireland are ftated. And they are examined in the following pages down tq page 75' .. Page 75, &c. — 79, contain fome remarks -concerning the legiflative 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. III. concerning the fupreme legiflative authority of the parliament of Great- Britain over all the Britifli dominions in America, which was. a declaratory ftatute. r : f * - . c'-r ' •• 'v^ w* -r ',: " : ^ - -^ ••-•- . .:• In t P R E F A C £• ix In pages 79 and 80 Lord Mansfield's aflertions concerning Wales are dated. 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 redudion by king Edw. I. in the year 1284, fupported by the teftimony of the venerable hiftorian, Matthew Paris, and other refpedablc authorities. «; . • :' - • In page 151 the other places men- tioned by Lord Mansfield as inftances of the exercife of the king's fole legif- lative power over conquered countries, are taken into confideration ;; which Berwick upon Tweed, the town are 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 ifland of Minorca, which were formerly a part of the Spanifh monarchy. b Page « I I i 31 PREFACE, Page 15a 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 IJ5 contains Lord Mansfield's words concerning the dutchy of Gui- cnne, or Gafcony, and the town of Calais. And pages 156, &c. i64f 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 ia pages 166, 167. In pages 168, &c. — 173, an account is given of the man- ner in which that province was claimed and conquered by king Charles the 2d| taken from Mr. Smith's hiftory of it ; by which it appears that the faid. province was not confidered by king Charles the 2d as a co7iquered country, but as a planted country, namely, as a part I pai Jonj coni claij plai cini PREFACE. xl field's rwick few. them, field's Gui- m of -164, ''it part of the more antient Englifli co- lony, or plantation, of New-England. In page 173 an inquiry is beguii concerning the legiflative authority claimed by the Crown over colonics planted by Engliflimen ; 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, &c. — 196. In page 200 an inference is drawn from the declaratory ftatute of 6 Geo. III. 1766, to fhew that the king alone docs not now claim to be the fole legiflator of any of the American dominions of the Crown. And in pages 900 and 201 a ^like inference is b 2 drawa ■f »■.. m I 1 PREFACE. drawn from the late aft for the government of the province of Que- beck. In pages 201 and 202, anobjedition is made to the laft inference : which objedion is grounded on the king's proclamation of Oftober, 1763, which is underftood by fome perfons to have contained an immediate refignation, 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 ereded by it. This objedion is exa- mined in the following pages down to page 215. In page 216 another objeftion is made to the fame inference from the late Quebeck-ad:. This objedion is grounded on the condud of the Crown with refped to the province of Que- beck from the loth 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 : the ■ Que- • sdHon •1 ■J vhich 1 dng's 41 «rhich ■ 4- have ■'^ 3 >n, on lative " ivern- IVeft- •I were exa- M vn to 1 on is 1 i the 1 m is 1 rown ii ^e- 1 764* 1 faid m pub- I |mif. I Ifion 1 fion of civil governour, to the year 1774, in which the late Quebeck-aft was pafled. And it is examined and anfwered in the following pages, dowo' to page 224. -^ / Pages 224,&c.»— 240, contain fome remarks on the nature of inftrudionai: to governours of provinces under the king's fignet and fign-manual, and ott the difference between fuch inftruc- tions and the commiffions of govern- ours under the great feal, and on a remarkable claufe in thofe commiffions, which contains a reference to the in- ftrudions, and feems intended to adopt them, (as it were,) into the commif- fions, or give them an equal degree of authority with the commiffions them- felves, without reciting them in the faid commiffions# Pages 241, &c.— — 268, contain a conjedlure concerning the reafons that may have been the occafion of the infertion of the faid claufe of reference in the commiffions of governours under the L^ aw PREFACE. I 1 the great feal ; with fome remarks on the prcx:eedings of fecretaries of ftatc 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 neceflity. . Pages 269, &c. — 277, contain fome remarks on the ordinances pafled by the gorernour and council of the pro- vince of Quebeck before the late. Quebeck-aft. In page 277 the main argument concerning the king's legiflative 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 28r, 282, &c, — 288, with re- ipcd to his afiertions concerning Mi-» norca. i •'* 1 PREFACE. X9 norca* And herewith ends the exa- mination of Lord Mansfield's fecond head of argument in fupport of the king's fole legiflative authority over conquered countries, which is derived from hiftoricai precedents, or exam* pies. '^^■ The remaining part of Lord Manf* field's fpeech in delivering the judge- ment of the Court of King's Bench iri 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 Hardwickc,) and Sir Clement Wcarg in the year 1722 concerning the ifl^nd of Jamaica, when they were in the offices m XVI PREFACE. offices of attorney and foUicitor gene^ ral to king George the ift. ; .,r; Page 296, &c.~300 contain remarks on thofe two authorities, fhewing that the opinion of the judges in Calvin's cafe, inftead of favouring the dodrine 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 dodrine,) was, according to Lord Mansfield's account of it, a very hafty opinion, upon which thofe learned lawyers appear to have bellow- ed very little attention, and that it mufl alfo be confidered as having but a finall 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 pofleflion of the offices of attorney and foUicitor general. In ■M: natts PREFACE. xvu [narks y that ilvin's drine was It the id Sir mow- Lord rding it, a thofe ftow- lat it g but iding )ur of byafs fup- ainds lion, es oif ■I In page 300 the authority of Cal- vin's cafe is further confidered ; and in the following pages 30 r, &c.— 323, a very full account is given of that famous cafe, with a copious extradt from it : which is followed by fome remarks upon the faid cafe in pages 323, &c. — 328. Pages 328 and 329 contain a con- jecSure concerning the caufe of Lord Mansfield's citing the opinion of the judges in Calvin's cafe as an opinion in fupport of his doftrine of the king's fole legiflative authority over conquer- ed countries, though in truth it makes agamft the faid dodrine. Pages 330, &c. — 342 contain an hiftorical account of the difputes in the beginning of king- James the ill's reign concerning the right of the Pojl nati^ (or perfons born in Scotland after the acceflion of king James to the crown of England,) to the privileges of natural-born fubjeds of the crown of England ; which gave rife to the aforefaid cafe of Calvin. c Pages % •«. XVlll PREFACE. Pages 343, &c. — 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 oppofition to Lord Manf- field's argument in fupport of the fole legiflative power of the Crown over conquered countries. Pages 367, &c. — 370 contain re- marks on Lord Mansfield's peremptory- manner of aflerting the fole legiflative authority of the Crown over conquered countries. Pages 370, 371 contain a remark on Lord Mansfield's firft affertion on this fubjed, viz. ** That the king s legiflative right over a conqueft has never been denied in Wefiminjier Halh'\ , ^ Pages PREFACE. XIX in an )inion ; the uered udge- Hall, >inion urt of ain a con- going Vfanf- e fole I over n re- m '•f Pages 372 and 373 contain a re- mark on his fecond aflertion, " TAat the kings legijlative right over a conquejt was never quejlroned in parliaments^ Pages 373, &c. 379, contain fome remarks on his third aflertion, ** ^hat no book^ no faying of a judge^ no opinion ef any counfel^ publick or pri- vate^ has been cited on the other fide ;" together with an extracb 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 doftrine 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 J 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- Q z ' torney 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, the year 1717, while he was at- m torney-general to king George the ift, that is nearly to the fame effeft 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 oppofition 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 effedl 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. xxi .15 I claration of his opinion is a decifive eftablifhment of that doftrine, 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'st fole legiflative authority over con- quered countries, (even if we fuppofc that the other judges of that court concurred with Lord Mansfield in making it,) is only a decifion of the fourth, or loweift, clafs. The few remaining pages of the Dialogue contain a remark on the expediency of fettling the law on this fubje<3: by adl of parliament, m a manner contrary to Lord Manf- field's doftrine. Thj8 • • Zxxi 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 let before him. They are drawn out more fully and diftindly in the ab- ftrafts 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 count IDia- given Icr to >( the hat is n out e ab- aufed in the :h, I J very )par- er he ' t HE "M c 'Mj^- V pron the of t] Briu I he your ougl For, . Y ,1 THE Canadian Freeholder. I A DIALOGUE II. FRENCHMAN. I HAVE waited with impatience for this Of the legif- . .1-1 I ^^^''^^ power fecond meeting, m which you have ot the Crown promifed to inform me of the dodrine of rJ^onquc'ed the law of England concerning the extent countries of the prerogative of the crown of Great- Britain with refped 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 fubjedl. For, as I am myfelf become a fubjcd of , Yor.II. . B his ;.s. Uncertainty of the la(w upon this fubjea. The opinion of one fet of lawyers upon it. [ 2 1 his Majefty in confequence of the conqucrt t( Canada in the late war, it is natural fot mc to defire to know the whole of the re- lation in which I flood to him after the ceflion of the country to the Crown by the late peace, and before the publication of the royal proclamation of 0(3ober 1763, which made us partakers of the Englifh laws and conftitution, but which, to our great misfortune, has been refcinded by the late Quebeck-ad. < ENGLISHMAN, I remember my promife, and am ready to ufe my beft endeavours to perform it. But I much fear they will not be fuccefsful. Indeed they hardly can be fo in the degree you wifli 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 Englifh lawyers themfelves are divided in their opinions upon it. For there arc fome 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 J} nqucft ral fot the re- er the vn by ication 1763* Dnglifh to our ed by I ready >rin it. cefsful. degree form quef- >ecaure iivlded '# ol 4 ''■M { 3 } than over countries that have been planted by colonies of Engliflimen 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, accordiag to this opinion, appoint the governours, and judges, and flierifFs, and juftices of the peace, and other officers of juftice, in fuch con- quered countries ; and may receive, and dif- pofe of, all the publick revenues already legally fubfifting in them, and appoint the neceflary officers for that purpofe ; and may raife, and arm, and connnand, the militia of fuch countries, hi cafe they fhould be either invaded by foreign enem^ies or difturbed by domci'^ick infurredlions : but he cannot »make laws for them, or impofe new taxes .on them, by his (ingle authority; but only in conjundlion witli the two houfes of the Britifh parliament, or with an alTembly of jeprefentatives chofen by the inhabitants of thofe countries themfelves refpedtively. 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 ] The opinion eminence, who afcribe to the crown a greater fet of lawyers degree of legiflativc power over conquered akrUje nTore ^^^ ceded Countries than over Great-Britain, or the provinces planted by Englifh colonies. But yet, if I underftand 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 adls of parliament, made be- fore fuch conquered countries were ac- quired, as were exprefsly declared to com- prehend them when they (hould be acquired j to all which ads either himfelf or his pre- deceflbrs muft have given their royal aflent. Of this kind is the ftatute of the firft year of queen Elizabeth, for abolifhing the autho- rity of the pope, and all other foreign jurit. didion, in fpiritual matters in England and the other dominions of the Crown, which enadts, " that no foreign prince, perfbn, prelate, ftate, or potentate, fpiritual or temporal, (hall at any time after the laft day of the then feflion of parliament, ufe, enjoy, or exercife, any manner of power, jurifdidion, fuperiority, authority, pre- eminence, or privilege, fpiritual or ecclefi- " aflical. cc <c <c C( cc C( -I *' fH ( ( C( .%» [ s 3 " aftical, within this realm, or within any " other your Majeflys dominions and countries^ " that now be^ or hereafter Jhall he ; but " from thenceforth the (ame {hall be clearly " aboIi(hed out of this realm and all other " your Maje(ly*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, ** An atl for the encouragement ** of trade 'y^ in the feventh fedlion of which it is enadted, " that, after the 25th day of ** March, 1664, no commodity of the growth or manufadlure of Europe {hall be imported into any land, ifland, plant- ation, colony, territory, or place, to his Majeity belonging, or which fJjall hereafter " belong unto, or be in the pofjefjion oJ\ his ** Majejiyy his heirs and fucceffors, in Afia, Africa, or America, (Tangier only ex- cepted) but what fhall be laden and (hipped in England, Wales, or the town of Berwick upon Tweed, and in Englifh- built fliipping." 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 adl Jor preventing ** frauds^ (C <( (( C( <c c< re <c cc ' il I lliH i' [ 6 1 fraudsy and regulating abufeSt in the Plant" ation Tradey' by which it is enadled^ That, after the 25th day of March in the year 1698, no goods or merchandizes whalfoever (hall be imported into, or ex- ported out of, any colony, or plantation, to his Majcfty in Afia, Africa, or Ame- rica, belonging, or in his pofleflion, cr which may hereafter belong untOy or be in the pojfejjion ofy his Majejly, his heirs, or " fuccejforsy in any fliip or bottom but what is or (hall be of the built of England, or *' of the built of Ireland, or of the built of ** the faid colonies or plantations." Thefe adts 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 con(kier€d by the(e latter lawyers as redraints upon the legidative authority of the Crown over conquered and ceded coun- tries ; infomuch that they hold that the king cannot, by his (ingle authority, either repeal thefe a6ts with refped to fuch countries, or make any other laws for fuch countries that iliall be incon(iftent with them. But this .they declare to be the only limiiation of the king's « «c <( cc <c <c « «c <l « 4< 1 be Planf-^ cna(flcd^ larch in handizes , or cx- antatioii, )r Ame- llon, cr or be in heirSy or ut what and, or built of Thefe e like he fu- of the awyers prity of coun- le king repeal E t 7 1 king's original legiflative authority over fuch countries immediately after the conquefl and ceflion of them, and affirm that in all other matters, not fettled by fuch previous adls of parliament, he may, after the conqueft and ccflion of any country, make and un- make laws for it by his own fingle 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 conjundion with both houfes of parlia- m«nt. This they conlider as the original legiflative authority belonging to the Crown over a conquered and ceded country in con- fcquence of the coilqueft and ceffion of it. But they allow that the king may after- wards, by his own adl under the great feal of Great-Briton, diveft himfelf and his fuc- ceflbrs of thiiB 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 (liall be made for them either by the king and parliament of Great-Britain, or by the king, or his rcpre- fentative the governour of fuch ceded coun- try, in conjundion with ihe reprefcntatives of The litter opinion has been adopted byLd.Mans« field and the other judges of the court of King's- Bench in England. r 8 ] . of its inhabitants. And, when this privilege has once been (o granted by the Crown to the inha- bitants of fuch a ceded country, thefe lawyers hold that it can never be refumed except by adt of parliament. The opinion of thefe latter lawyers feems befl intitled to be confidered as the law upon this fubje(ft, becaufe it has been folemnly adopted and declared by lord Mans- field, the chief juftice of the King's-Bench in England, and the other judges of that great court, in their judgement on Khe 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 colledor of the cuftoms in that ifland) on certain fugars of the growth of that illand which he, the faid Campbell, had exported from thence, was illegally impofed, and ought not to have been colledted, merely becaufe the king had, by his proclamation above-men- tioned, of Odlober, 1763, (which was ante- cedent to the faid letters patent of July, 1764, ¥ -f -'C^ 'M vernm< is I it wou i plaintif i bound This King*s- was arg by fom bar. Pi to be fubjed. decifipi the otb law. Vol ilege has he inha- lawyers pt by ad 5fe latter dered as las been 1 Mans- 5-Bench of that :he cafe ft Hall, bur and inhabi- s patent plaintiff jay to olledor certain which d from ht nor fe the :-men- ante- July. 1764, [ 9 1 764, which impofed the faid duty,) di- verted himfelf of the power he had before poflefled, by virtue of the conqueft and ceffion 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 iaid proclamation of Odober, 1763, (which communicated to the inhabitants of Grenada the free conftitution of the other royal go- vernments in America) had been publiflied, it would have been legally impofed, and the plaintiff Campbell would have been legally bound to pay it. ■ r 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 Englifli bar. And therefore I think it may be laid to be now the law of England upon thi>{ fubjed, there being (as I am told) no other decifipn upon this point, either one way or the other, in all the volumes of the Englifli I law. Yet, if it were not for this great Vot.. 11. C authority^ m i reaion. » [ 10 ] Vet the for- authority, I fliould, from the mere reafon fcems"*' moft of the thing, have been inclined to the opi- agreeabie to j^j^ q£ jj^g ^^j^g^ lawvcrs who hold that the reaion. * King, Lords, and Commons conjointly, who are the legiflature of Great-Britain itfelf, mud neceflarily become the legiflature of every country which, by conquefl: or ceflion, be- comes dependant on Great-Britain ; 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 pofTefled of the fame rigl .i with refpedl to every country which is conquered by, and ceded to, it. , , i 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, fuppoflng 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 poiitive law, or fome decifion of a court of juftice, that either eftabliflied, or ' ** •' feemed ire reafon ) the opi- d that the ntly, who tfelf, muft of every flion, be- ; and, in of men, g laws for :ourre be- ith refped uered by, e rational I u fay, has ,. e court of • I the point nents de- general e law of nuft have ecifion of IKhed, or feemed t " ] feemed to acknowledge, the other opinion, or that the pradice with refped to countries conquered by the crown of Great-Britain has been favourable to it. For without fomc fuch powerful argument from aathority 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 thnt kingdom, and intruded with the exe- cutive power of the ftate, 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 pofTefled of an abfolute power of making what laws he pleafed 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 Britifh arms except in thofe points in C 2 which m 1 yi f tl The reafons tffigned by Lord Mans- field in fun- fiort of the atter opini- on* Firft, the king's right of making peace and war. Secondly, the praftice which has taken place with rel'peft to conquered countries. [ 12 1 ^vhich his legidative power is rcArained cither by adts of parliament made before the con- queil of luch countries, or by adts of par- liamenty or royal proclamations or charters, or other adts of flate, made by himfelf after the conqueft of them. ENGLISHMAN. The reafons affigned by the lord Mans- field, the chief juftice of the court of KingV Bench, in deliverin?^ the judgement of the faid court in the aforefaid cale 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 pradlice which has taken place with refpedt 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 cfpecially the little territories of Gibraltar and i cither le con- of par- hartersy ;lf after I Mans- KingV of the ampbeli I of the ir con- cible to cknow- , which )wer of on the radlice to the time, gland, [Wales, more braltar and •'V ■■5 '^ $ Thirdly, che opinions of judges, given occafionuUy in deciding upon other fuhjeds I and the o^iinions of lawyers, given out of court upon cafes concer- ning which they were confulted. [ 13 ) and the ifland of Minorca, which have beca conquered from the crown of Spain, and ceded to, and enjoyed by, the crown of Great-Britain ever fincc the peace of Utrecht; and. Thirdly, the opinions of former judges and eminent lawyers upon this fuhjedt, 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 decilion upon the point before that in the faid cafe of Campbell and Hail. But none of thefe realons appear to me to be very fatisfadory, FRENCHMAN. The firft reafon, which is derived from infufficiency the king's right of making peace and war, reafon. I think I can perceive the weaknefs of. For why (hould the right of making peace and retaining a conquered country by the cefTion 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 ? 1; : tl -vi It is more Tcafo.iable to fuppofe that the king^ abfolute power over a conquered country, be- ing founded on neceiHty, ihould ceafe at the inflant of the ceilion ofthecountry by a peace. I H I plcafure ? I can fee no ground for fuch 2 conclufion ; but fhould rather think that the king's abfolute power over fuch a country (which power I will fuppofe to have conti- nued during the war, fiom the necefllty of the cafe j) muft ceafe ar. the very inftant of the ceflion of it by a peace, when things re- turn from their unnatural and violent flate into a flate of tranquillity and civil govern- ment. And from that moment I fliould 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 fovereign, 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 fubjedt to the king alone in fuch countries only as are governed by abfolute monarchs. ENG. <c UlrtHiiii 1. „ [ >5 1 -i » 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 recolledl them, the words in which it was exprefled by lord - Mansfield in delivering that famous judge- Lord Manj- ment. It was nearly in thefe words. " The ner of ftTdng " king has a power to grant or refufe a ca- ?^ aforeiaid " pitulation to the conquered enemy. If ** he rcfufes it, and puts the inhabitants of the conquered country to the fword, or • extirpates them; as he obtains the country by Qonqueft, the lands of it are his, and .. he may grant them to whom he pleafes : *^ and, if he plants a colony upon them, " the new fettlers will hold the (hares of ** the faid lands which (hall have been allotted *' them, fubjed to the prerogative of the ^* conqueror. If, on the other hand, he ** does not put to the fword, or extirpate, ** the old inhabitants, but receives them into ^ his obedience, and grants them a conti- ** nuance (C cc iC cc »!;■■. ijlf !( i' ii ! 1 i II cc <c tc <C CC CC cc CC cc CC I i6 I 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 difcretion j and he may retain the conquv^ft or yield it up on fuch conditions as he (hall think fit to agree to. This is not a matter of diiputed right. It haa hitherto been uncontru- verted that the king may change a part, or all, of the political form of govern- ment over a conquered dominion.** .,.,, ■J. I •f •*'',■,., ^» .X' i»''.^^ '^ FRENCHMAN. Obfcurity andconfudon of the forego- ing words; in which three powers, quite diftin£l in their nature from each other, are confounded together. Flrft, the power of im- pofing terms upon the con- quer'd people at the time of the conqueil. Thcfe words feem to be very obfcure. They jumble together in a ftrange manner three things that are in their nature perfedtly diftind; namely, in the firft place, the power of the conquering king, at the mo- ment of the conqueft, to grant or refufe a capitulation, and to put the inhabitants to thefword, orbanifh them from the country, and take pofTeilion of their lands, or to grah£ them iaeir lives and the continuance of thcf pofleflion of their lands and other property, or to grant them their lives only and deprive' them of their property, or, in fliort, trf impofej ii ■i thir eith at itsf man nion it tc the in th of fa of ft in th new the ] thepc of fuc of im final < the ti conch tainly extreai Britain r own m X upon M terms i and he ."■''• up on fit to J* lilputed ■■', ■ i contru- M a part, m govern* 1 )bfcure. nanner erfedtly e, the le mo- efufe a i>^M nts to ■p:^SM )untry, 5 grarii of thd ts^^^ )perty, eprive* rt, td mpofq [ 17 ] impofe fuch terms upon them as he (hall think proper ; and, fecondly, the power of either relinquiftiing the conquered country at the end of the war by a ceffion of it to its former fovereign, or retaining it as a per- manent part ef the conquering king's domi- nions, in confequence of a ceflion made of it to him by its former fovereign, (as was the cafe with refpeift to Canada and Grenada in the late war ;) and that upon fuch terms of favour and indulgence to the inhabitants of fuch ceded country as (hall be agreed on in the treaty of peace between the old and new (bvereigns of it, by which it is ceded to the new fovereign ; and, thirdly and laftly, the power of making laws for the inhabitants of fuch conquered and ceded country, and of impofing taxes upon them, afier the faid final ceffion of it to the new fovereign by the treaty of peace by which the w^ar is concluded. The(e three powers are cer- tainly diftindl from each other; and it is extreamly poffible that the king of Great- Britain may be polTelTed of the two former powers by the conftitution of the Britiili government, (which, I underftand, has Vol. II. D veftjd Secondly, the power of rc- ftoring the conquered country to its former fove- reign by a treaty of peace, or of retaining the peaceable and permanent pofleflion of It by means of a cefTionofitby the former fo- vereigtt. Thirdly, the permanent power of mak- ing laws for its inriabuants, and impofing taxes on them, after the final ceflionof it by the peace. !j! [ i8 ] / veHed in the king alone the right of making peace and war,) and yet not have a right to the laft power, which can be exertq^ only when both 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- . ceflarily connedled with each other. ENGLISHMAN. 1 agree with you in thinking that there is in thofe words of Lord Mansfield the confufion you have defcribedj which is indeed furprizing in a peribn of fuch emi- nent abilities, and fo much celebrated for his powers of reafoning, The three powers you have mentioned are certainly didindt from each other j and the pofleflion of the firft of them, or even of the firft and fe- cond of them, by no means implies a right •The firft pF jQ tj^g poffeffion of the third. The firft of the aforeiaid * powers feems thefe powers feems to be implied in the right in the* power ^^ making war, which is generally acknow- of making icdged to be a part of the king of Great- Britain's war. / making i a right exertc;^ ire com- ic three ve men- mingled ipy as if , or ne- lat there ield the ^^hich is ch emi- ated for I powers diftina \ of the and fe- ; a right I firft of he right Lcknow- Great- Britain's m m if t '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 pradlice, (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 the 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 of the Crown, feems to have no connexion 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 pofTeflion of either of thofe rights, and muft be a part of the permanent, quiet, and (if I may fo exprefs it,) civtl prerogative of the Crown, which it poflTeffes 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 necefla- rily connefled witheither the powerofipak- ingwar,orthe power of mak- ing peace* m But there are learned law- yers in Eng- land who a- fcribe this third power to the Crown» and conceive it to follow from the king's right of making war and peace. t 20 1 however, heard fome learned lawyers in private converfation declare it to be their opinion, that, by the law of England, the king has fuch a legiflative power over con- quered and ceded countries ; and, when preiTed to explain the grounds of their opi- nion, they have faid ihey conceived fuch a power to be implied in, or to follow from, the king'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 adl by his authority. This kind of reafoning I have fometimes heard ufed by lawyers upon this fubjed, before the deciiion 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 unfatisfadtory. I i: clearll ^J lawyJ fe fuch 1 you t thoug arguii Ifhoi in as a mo t can hi i be mc I the fii I Britain I make I inhabit I conqut 1 the fal and, i Indies^ depenc FRENCH- ycrs in Q their [id, the cr con- when eir opi- fuch a ^ from, id war, cquires, le lives )ple, if hem to f or his This heard before mpbell le with itained ch we en and ^ly in* [ 21 } FRENCHMAN. I beg you would mention, as fully and clearly as you can, the manner in which the lawyers you mention dated 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 conclufive, yet I {hould be glad to hear the matter dilcuiTed in as full a manner as poHible, as I think it a moft important fubjcd. For, in truth, I can hardly conceive a law-queflion that can be more curious and interefling than this of the fuppofed right of the crown of Great- Britain, independently of the parliament, to make laws for, and impofe taxes on, the inhabitants of the countries that may be conquered by the Britifli arms, upon which the fate and political iituation of thoufands, and, if we turn our eyes towards the Eaft- Indies, even of millions, c .".■^r^ ':.:■ >.., Thequeftion, whether the king is, or i» not, the fole legiflatorofall countries con* qoered by thi Britifh arms, is of the great- eft import* ano;. depend. people may It concerns, in the firft place, theinhabitants of the conque- red countries. ENG- It [ « 1 ENGLISHMAN. ^>'ll -:! •l-f! And, in the You might havc added that the fate of] it concerns e' the inhabitants of Great-Britain itfelf does bitanJT'Sf*' likcwife depend upon this queftion. For, Great-Britain jf the king (hould conqucr and keep pof- feffion of fome of the rich provinces of! Indoflan, 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 afliftance of | the parliament. And in fuch an event he ttiight 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- mons or appointment. And if this fhould be done, itjs eafy to fbrefee that, in a few years, the very exiftence of the Britifli par- liament might be forgot, or become a mere hiftorical event, known only to the fpecula- tive t 23 1 tive inquirers into the Englifh hiftory, juft as the exiftence of the States-general of France (who once were iharers 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 into the hiftory of that king- dom. t— ';\ » FRENCHMAN. This is indeed a very ferious 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, I fee it very plainly. And it ought, I fliould think, to have alarm*d all the lovers of liberty in Great-Britain. Pray, have not they exprefled fome appre- henfions upon this fubjedt? more efpecially fince the decifion of the cafe of Campbell and Hall, in which Lord Mansfield fo for- mally delivered his opinion in favour of this dangerous power of the Crown ? m ENG- I 1l !!( Some few Enelifhmen, and but a few, haveexprefs'd a fenfe of the dangers that may arife to them from this preroga- tive. An extrafl irom a pam- phlet publilh- «donthisfub- jed in the year «774« t 24 3 ENGLISHMAN. I do not hear that they have, in general, exprefTed any apprehentions of this kind; though fome individuals among them appear to have had a jud fenfe of this danger, and have not failed to admonilh their country- men of it. In particular I obferve that the author of a pamphlet intitled, " Confidera- | tions on the impofition of four and a half per cent, colleSled in Grenada^ Cf^." which was publifhed at London in the year 1774, while the aforefaid caufe of Campbell and Hall was ftill depending, expreffes himfelf in a very juft and lively manner upon this fubjedt. His words are as follows. " I fhall leave it to abler pens to confute the pre- tention now fet up of his Maje{ly*s having 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 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 conquers mufl be f* fatal indeed, and, when we think we are " vanquifhing (C (C <c cc <c cc cc cc cc liilil; 1 general, lis kind; m appear iger, and country- that the uon/idera- half per hich was hell and 1 himfelf ipon this " I (hall the pre- s having country I always 'hen the try, the vas fup- it does nufl be [ 25 ] " vanquiflilng our enemies, we are only " forging fetters for ourfelves and our pofte- <c fj(y^ jf the infatuated inhabitants of ** Great-Britain fhall acquiefce in this claim " of power, and luffer their felIow-fubje(fls " 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 (hould 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 Britifli * 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, v^rithout grant ** of parliament, to pay and maintain armies, " by whofe afliftance, if any future king " fhould think fit ^ 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 fub- icribe. Vol. II. E * FRENCH^ C( <c cc <c p .i Sll [ 26 1 Expediency of pafling an ad of parliament for fettling the legiflative power over conquered countries in the king and parliament conjointly. FRENCHMAN. 'And (o do I. And fo ought every Britidi fubjcdl to do. And indeed I (hould 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 dircdtly 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 ftands, 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 fhall be hereafter conquered by, or ceded to, the Crown of Great-Britain, in the king and parliament conjointly. ENGLISHMAN. There is but I heartily wifli that fuch an adl of par- e"^a?hTt''' li^"^^"^ we^^ ^o P^^s, though, by all the fuch an aft of accounts I have heard of the prefent ftate of parliament t-» i i t i i- i . will be paffed England, I have little expectation that any in England, ^-^^j^ ^j^j^^g ^^ ^^ ^^ ^^^j^ ^^ attempted. So low is the fpirit of liberty at prefent amongft •y BritiHi lid think It-Britain it is too clare the contrary rented it, ion to be w, as it opinion, veft the ing laws at ihail to, the ing and [ a7 ] amongft the Englifh nobility and upper The love of gentry ! and Co much are they funk in plea- IjJ'onjamongft fure and difTipation of the moft wild and »!>« Engl»^^ ^ extravagant kind, luch as gaming to a degree to be. 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 moft 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 tafle for liberty, and that habit of ferious refledion upon import- ant fubjeds, which is neceflary to make them rightly underftand, and duly eftimate, the advantages of a free government I At lead This drcum.; this is the account which has been tranfmitted JJj'ad" Jj," A- of them to us, inhabitants of North-Ame- ^.^Icans un- wiUing to be rica ', and it has greatly contributed to indii^ conncfted pofe the greater part of us againft any clofe connection with, and, fHll more, againd a fubjedion to, a parliament compoled of fuch members. , tiOi parlia- ment. But, if the prefent temper of the people of Great-Britain (hould take a turn, (as fometimes happens mod unaccountably,) and fliould become again favourable to publick . . E 2 liberty. 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 confiftent with publick liberty. [ 28 ] liberty, and an adt of parliament of the kind you have mentioned, for vefting the legifla- tive authority over conquered countries in the king and parliament conjointly, (hould be then propofed, I fhould wi(h that another point, of almofl as much confequence to publick liberty as this legillative power, (hould 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 reliih and value for civil liberty as any of you, natives of Great-Britain or the antient Britifh colonies in America, though 1 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 Englifh government for thele fifteen years paft, till the fatal ift of May laft, when the new adt relating to the government of this province [ 29 ] province took place, has given us fuch an agreeable tafte of the pleafures of Englifh liberty as will not foon be obliterated from our memories, though we (hould 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 compleaC protection of the Englifli laws and confti- tution. I therefore beg you would inform me, what that other point is, which you confider 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. ' .. .. . . , ... - - ■ . ■ , .i That other point is the right which the king ^^''riiht of '* of Great-Britain is by many people fuppofed to the king to have revenues and taxes in conquered countries as are legally exifting in them at the time qt the conquell. W':- § Two opinions are entertain- ed upon this fabje^. ' t 30 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 eftablKhed in fuch country at the time of the conquefl, and to difpofe of them, when coUeded, in whatever manner he (hall think fit : which, you cannot but obferve, is quite a diftindl right from that of impofing new taxes on the inhabitants of fuch countries. This prerogative is not indeed univerfally al- lowed to belong to the crown in the extent I have mentioned j there being fome gentlemen of great judgement and extenlive knowledge in the laws and hiftory of England who are of opinion that the right of dtfpofmg of the re- venues of fuch conquered countries, when colleded, does not belong to the king alone, but to the king and parliament conjointly, though they allow that the right of coUeSiing them belongs to the king alone. But other perfons, (and, I am inclined to think, they are more in number than the former,) arc of opinion that the king may legally do both thefe things, laying it down as a general maxim in the Englilh government, ** That . . the I'!' I ^ I' ' , t 3' ] the king (though he cannot levy money upon his fubjedts without confent of parlia- ment,) may difpofc of all publick money already levied, and of the continual produce of all taxes already legally exifting, in any manner that he fhall think proper ; except where fuch money fhall have been appro- priated, by ad of parliament, to certain fpe- cified publick ufes, or refer ved by the fame authority for the future dilpofition of parlia- ment." * Which of thefe two opinions deferves to ]■'-. ifidered as the true one, is more than I wiii 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 colledling them,) feems to be the moft generally adopted. Now, if this latter opinion ♦ According to both thefe opinions the king might legally coiled 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 adtion has been brought againft the collectors of the faid poll-tax, as having colle£led it illegally. « The right a- fcribed to the crown by the latter ot the two foregoing opinions, (though it may legally belong to the crown) may, in fome cafes, be very dan- gerous to the liberties of Great Britain. [ 32 ] • opinion be true, it is certain that this right of the crown to colled and difpofe of the publick revenues of conquered countries may become extremely dangerous to the liberty of the inhabitants of Great-Britain j as will eafily appear by fuppoliiig a cafe in which an ample annual revenue ilhould 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 fuch a cafe without tranfgrefs- ing the bounds of probability. Cafe of th ^^ ^^^® ^^^^ *^^' ^^® "^^ provinces of conqueftof Bengal, Bahar, and Orixa, in that great vinc«ofEa*ft- peninfula, have already, in effedt, been re- India. 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, fteiling. This revenue was colkdled there in the time of the in- dependant I 33 ] > dependant nabobs, or fovereigns, of thofe provinces: and therefore, I prefume, the taxes> or rents, out of which it arifes, were impofcd 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 Eafl-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 protedion; and they fcmploy another part of it in the mainten- ance of their own armies, and forts, and other eftablifliments, civil and military, in that country j and then they divide the remainder of it (over and above what is neceflary for thefe purpofes,) amongft tliem* felves, that is, amongft the feveral proprietors of Eaft-India ftock. Now let us fuppofe that another fuch conqueft fhould be mad« in that Vol. II. F country ill I; ^' The Crown might, pro- bably, derive from Aich a conqued, (without im- pofing any new taxes,) a clear reve- nue of two millions of pounds Her- ling/^r ann. \ t 34 ] country by the crown inftead of the Eaft- India Company ; as for example, a con- queft of the province of j4rcot (of which we have lately heard a great deal,) or of the province cfDecan : and that the publick revenues regularly colledled in the country fo conquered (hould amount to three, or four, millions of pounds {\er\ing per annum* Of this large revenue it is probable that, with good management, one or two millions might be fufficient to defray the expences of the civil and military eftablifhments that would be found neceflary for the mainten- ance of the king's authority and the ad- miniftration of government in the faid coun- try ; and confequently that two millions of pounds fterling might be remitted every year to England, to be dilpofed of as the king {hould pleafe. There is nothing in this fuppofition that is at all improbable; nor would the making fuch a new conqueft, and the acquiiition of fuch a new revenue, by the Crown be at ail inconfiftent with the rights of the Eaft-India Company, or their enjoy- ment of the acquifitioLs 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 affiftance of parliament, ( as king Charles the I ft did during thefpace of eleven years, till the people had almofl forgot what a par- liament was }) 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 miniders of ftate ihould 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 fandlibn 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 Britifh conflitution would be greatly impaired, and, in the firfl way, totally extinguifhed. 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 'J ceded countries in fuch manner as it fliall F 2 *J think Illconfequen* ces topublick liberty that might arife from fuch an increafeofthe revenue of thd Crown. [ 36 ] " tfiink fit," which is much more gcnerallj allowed to belong to the Crown than the !'. former prerogative of impofing laws and f 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 5 and therefore I join with you moft heartily in wishing 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 ^j^jg dangerous prerogative? For I do not this preroga- think it would be eafy fo to regulate it as Crown. intirely to remove the danger you have beea defcribing. ENGLISHMAN. 1 «• , t , * = ' I agree with you that it cannot eafilybe regulated fo as to avoid thofe dangerous confequences we have been /peaking of. Nay more, I believe it cannot poffibly be {q regulated. And therefore (as we now are ipeculating upon this fubjed, and inquir* <c cc <c <c [ 37 J ing, not what is mod likely to happen, but what is bed,) I do not wifh it to be regu- lated, but to be wholly given up by the crown ^ouUy^Ahl^^ and vcfted, by adl of parliament, in the king ^»*»'»S *' .?>/ and parliament conjointly, <* fo that, for the ment. " future, the publick revenues of all fuch *' countries as (hall be conquered by the Bri- " tifh arms and ceded to the crown of Great- Britain, which (hall be found to be legally exiding in the faid countries at the time of the conqued and ceilion of them, (hould be difpofed of by adt of parliament only;" like the overplus of the taxes granted by * , parliament in Great- Britain itfelf, above the fums necefTary to defray the expences of the fervices for which they are granted, which overplus, I am aflured, is always referved, by fpecial claufes in the adls by which thofe taxes are granted, for the future difpofal of parliament. \ FRENCHMAN. . This would undoubtedly be a mod deiire^ able method of preventing the dangers we , , have been fpeaking of. But, as it would fo greatly diminifti his Majedy's perfonal emo- . / '^ luments from all future acquidtions of his crown. *r d 'iljl I'll' KttllM "P ! ■jj. r 38 ] crown, it feems hardly reafonable to expcdl that he (hould confent to it : and without fuch confent, I prefume it cannot be taken. -ti *. - ■ * ■ ♦ • . • « 9, ; ^ I 9j-\i *i ENGLISHMAN. . -.rv,. f There is rea* fon to rhink that his pre- fent Majcfty would gene* roufly afTent to fuch an aft ofparliamenc, if he were re- quefted by his parliament, or advifed by his minifters, to do Co, This may be inferred from afimilaradlof generofity per- formed by his Majefty iince the laft peace, with reipefl to themoneypro- duced by the fale of the French prizes taken before the declara- tion of war. It certainly cannot. But there is reafon to think that, if his Majefty were to be follicited by his parliament to give his aflent to a bill of this kind, or even if he were to be ftrongly advifed by his minifters of ftate to declare to his parliament before-hand his difpofition to aflent to fuch a bill, (which would be a more decent and proper way of conducting the bulinefs than the other,) he would gra- cioufly condefcend to facrifice his own per- fonal intereft to the fafety and fatisfadion of his people. For he h^s already vouchfafed to do a limilar adt of noble generofity towards his fubjeds, in giving up to the publick revenue of Great-Britain the fum of feven hundred thoufand pounds fterling, which was the produce of the Tales of the French fhips which had been taken by the late king's fhips of war in the years 1755 and 1756, in the beginning of the hoftilicies of the late _ . war III [ 39 1 war againft France, and before the war had been declared in form, and the ufual a£t of parliament had been pafled for vefting the property of the fhips and goods, that (hould be taken at fea in the courfe of the war, in the officers and failors of the vcffels by which they fhould be taken. After (iich an adt of generofity one can hardly doubt ofhisMa- jeily's willingnefs to conftnt to fuch an adt 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 ftate whom he honours with his confidence. FRENCHMAN. The indance you have mentioned of his m Majefty's generofity to his fubjeds in giving up to them the faid fum of feven hundred thoufand pounds flerling, is indeed a very noble one, and warrants you in the opinion you entertain that he would not refufe his royal aflcnt to an adi of parliament of the kind you have fuggefted, if it were properly recommended to him. The probability there- fore of fuch an ad's being pafled will depend upon the difpofition of the parliament to r . • requeft. iJt, ^^ ;K. .ft mil Mi um It would be beneficial to the nation to Rurchafe his lajefty 'scon- lent to fuch a meafure by a grant of a handfomefum of money. t 40 ] t rcqueft, or of his Majcfty's minidets of ftate, toadvife, his Majedy to agree to fuch a mea- fure. How far they are likely to follicit or recommend fuch a meafure, I know not: but to me it appears to be a matter of fo much importance that I (hould 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 flerlin^, which, (as the emoluments which his Majefty might derive from this prerogative are diflant and uncertain,) might, I (hould imagine, be thought no contemptible compenfation for the lofs of it. x.nd thus both the king and his fubjeds would reap benefit from fuch 9. pieafure. ENGLISHMAN. I have no objedion to purchafing fo great a fecurity for the national liberties for what the lawyers call a valuable conftderation ; more efpecially as it would give the refigna- tion of this prerogative on the part of the Crown the greater appearance of freedom ^nd perfedt approbation, and would thereby contribute i 4M bbhtribute to make it moi'e binding and per- jfnancnt. Nor do I think the greater of the fums you have mentioned too great a ^rice for (o important an advantage— -Bu* now, if you pleafe, we will go back to the fubjedl we were before confidering, when this in- quiry concerning the danger arifing from the king's right to the legally-exifting revenues of conquered countrieSi called us away; that is, to the right of making new laws for, and impofing new taxes on, the inhabi- tants of fuch countries; which right Lord Mansfield has declared to be veded, by the £ngli(h conflitution, in the king alone, with- out the concurrence of his parliament. m ^fl| ^ ffl ■■1. -'- 'am t [ ' ■'/ iH I iH fw FRENCHMAN. You were faying^ if I remember rightj that you had known fome private lawyers ivhoi (before the decifion 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 ; and thati ivhen prefted to explain the grounds of their bpinioni thefe lawyers had faid that they Vol. II. G conceived :>' jlj f ■ '?:' \\ n^. -!,■» i 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 abfolute power which he acquires by conquefl over ftie lives and properties of the conquered people, when no capitulation has been granted to them, either •by the king himfelf or the generals who adt by his authority, whereby the faid power. has been dlminiflied : which reafoning feemed 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 fhould 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 tt,'" An argument ufed by fome private Eng- lifli lawyers in fupport of the king's abfo- lute legiflative authority over cunquered countries. I io r. fi,tV ■^ ■• .^-- ENGLISHMAN. \ ^'^r ' The principal argument, alledged by thofe lawyers in fupport of this fuppofed preroga- tive of the Crown, may be ftated in the fol- lowing manner. " The king, fay they, with- *' out the parliament, is, by the Englifli " conftitution. (C m -m mp <c cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc cc ition. [ 43 ] • , conftltution, inverted with the power of making peace and war, and intitled to the abfolute property of all the captures made in wnr, unlefs he has previoufly diverted himfelf gf his right to fuch property by fome vokmtary adl of his own, as, for example, by giving his royal artent to fome a6l of parliament made in favour of the officers and foldicrs, or failors, by whom the faid captures fliall be made. He is marter of the lives of all prifoners of war who are taken without a capitu- lation :- — He is abfolute maftef of all the fliips, and money, and merchandize, or other plunder, his troops and fliips get poffeflion of, and may difpofe of thern in what manner he thinks fit. And, if he thus becomes abfolute marter of all the moveable property he can feize, (which is clear beyond a doubt,) then alfo, by parity of reafon, fay thefe lawyers, he muft become mafter likewife of all the immoveable property he can take from, his enemies, that is, of all the lands and houfes of the countries his armies con- quer i fo that, if the country fur rendered G 2 ^ " at Hh ' I ;«|. fif^M \ An an^'cr ta the faid argu- ment., >i (( €t <t if (C cc it u it %€ <C r 44 ] / at difcretion and without a capitplation, he might, by right of conqueft, lawfully difpofTefs every fieehplder in the country of his land, and give it away to other perfons, or fell it to the higheft bidder, and apply the money thence arifing to whatever ufes he thought fit. He is therer fore, fay they, ablolute monarch of the country, fince the lives and fortunes of the inhabitants are thus intircly at his difr This is the ftrongeft way I know of ftatidg this argument of thefe lawyers j in anfwer tQ which we may tpak^ the following remarks. All the premises in this argument I allow to be true j but do net think that the con- clufion, which thefe gentlemen would draw from them, is juft, namely, th?t the Jiing is, therefore, the ablolute monarch of uch a country, or has, in his fingl. caj.cicuyj the right of making laws for it. The power over the lives of the conquered peopi- is certainly only a temporary power. If the Ungdoes not caufe them to be put tc death V immediateiy [ 45 1 immediately after they are taken, or, at lead, during the remaining part of the war, he lofes his right of doing it. For, when a peace is made, and the con«iuered country is ceded and transferred to the conqueror by the former fovereign, and the old, or conquered, inhabitants are fuffered to con^ tinue in the country, and admitted to the rank of fqbjedts, and to take the oath of allegiance, it feems clear that they have a right to be protected in their perlbns 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 propoiition upon which the above-mentioned lawyers grounded their aj-gument, to wit, that the king is the abfolute mailer 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. , >«::■ (C cc cc f< 'm ^v- i' ■ '&1 ^ 1 I The ..^ .t, ^.-.Vl *-.., m i|;i$; 'inlli I OfdieuJgmal foundations of the rights of war. The probable foun(lation,or Teaibn, of the king's prero- gative of con- ducing the operations of ivar by his ^gle audio- lity. t 46 ] * The falfliood of this preliminary propo- 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 perfbns 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 neceffity that gives rife to them, that is, no longer than the war continues. And, as the rights of war themfelves are founded on neceffity, fo the power, or prerogative of 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 reafbn, namely, on account of the high expediency, amounting to a kind of neceffity, of entruft- ing this matter to the diredion 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 u • t 47 1 fit to be observed in conquered countries immediately upon their firfi fubmiffion, by a numerous body of men, and who are not at all times afTenibled together, fuch as. the parliament of Great-Britain. .This I con- ceive to be the reafon why the power of making thefe regulations is veiled in the kin^; alone immediately upon the conqueft of a country and during the remainder x)f the war J during all which time tbe inhabitants of fuch a country, though no longer in arms againft their conquerour, mufl ftill be fbp- pofed to be fecretly his enemies, and to l^e inclined to take the firft opportunity of throwing off his authority and returning to their former matters, and are, in truth, nei- ther more nor lefs than prifoners 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 confequently that of making temporary laws for them accord- ing to his difcretion, as being a neceflary part of fuch government. But, when the peace is made, and the country is ceded for i r.fl Y i-'fM' . '» - J :^)01 a- y* 12; S:.l itii mi n Mil vV If - IP fel4 This rearon ceafestoexiftf when the peace is con- cluded, and the conquered country has been ceded by its former fo- vereign to the Crown of Great-Bri- tain. V t 48 ] 6V6f to the crown of Great-Britain by the former fovereign of it, and the old inhabi- tants of the country are permitted to continue in it as fubjedls to the conquering Sovereign, and to take the oath of allegiance to him, (either with or without a reftoration of their lands to them,) there feems to me to be an end of the exercife of the king's prerogative of making war in fuch k country, and of all the incidental powers belonging to fuch pre- rogative. From that moment the laws of peace take place, and| as I fhould conceive, the legiflatlve authority with refpedl to fuch new part of tlie Britifh dominions as well as with refped to the former parts of them, muft reveu to its proper channel, in which it runs in times of tranquillity^ that is, to the king and the two houles of parliament Con- jointly. And, if it does not then fo revert^ it muft 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 ard fuppofed to be eompleatly terminated* ^ :r J . , j: . k FRENCH- i 49 1 JFRENCHMAN. ''11 t am thoroughly convinced, or rathet^ 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 conVerfed 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 itj that continued to have an exift- ence after the conclulion of the peace and the final ceflion of the conquered territory, when the legiflative power in queftion was fuppofed by them flill to continue in the Crown? ' , Of other argu- ments alledg- ed by the a- lorefaid Eng- lilhlavvycrs in fupport of the king's legifla- tive power o- ver conquered countries. ■wl I' -•.: Vol. II. H ENG- An argument for this jpur- pofe derived fromtheking's becoining owner oi all the lands of the countries hecon(jicrs. [ 50 ] . ENGLISHMAN. They were very indiftind in their manner of dating the grounds of their opinion. They partly aflerted this legiflative power to belong to the Crown as a fort of known propofition, or maxim of law, aiid partly endeavoured to prove it 5 and it was not very eafy to diftin- guidi their afTertions from their proofs, or to difcern in what their proofs confifted j which muft often be the cafe when the proofs all edged in fiipport of a propofition are in thcmfelves weak and inconclufive. Their firft and bed argument (bad as we think itj) 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 pcf- fefled them under the former government, or to any other perfons, and upon fuch terms and conditions as he fhould think proper ; from .1 [ J' ] from which they fceracd to infer that he had likcwife a right to make what laws for them, and impofe what taxes upon them, he fhould think fit. And fomething of this kind, you may obferve, fecms to be hinted at in the words of Lord Mansfield above-mentioned, l^^J^ Man?- • ncld s words where he fays, ** That the lands of the lothissffeft,, " country are the king's, and he may grant " them to whom he pleafes j and, if he plants " a colony upon them, the new fettlcrs will " hold the (hares of the faid bnds which " fliall have bceh allotted to' them, fubjedl " to *thc prerog;ativc of the conqueror." Thefe words feem to me to mean, that the king*s legiflative authority over thefe new fettlers is derived from the circumftance of his having granted them their lands j though ftill the laft words, fubje^ to the phrogathc of the. conquer or y feem very obfcure, fince the whole matter in queftion is to know ivhcit ii 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 conqucft. '#■- tm • PI A remark on the foregoing argument, ihewingitsin- (afficienc/. V'^m r' 5i 1 conqueft, and having granted them to their prefent ponTefTors upon fuch conditions as he thought fit. ' . ' ' ' "" ' '^''Hir- wi: i FRENCHMAN. ' V; , I • 1 X This feems to me a ftrange way of argu^ ing ; to found a right of impofing laws and taxes on the inhabitants of a given diflridl, on the mere ownerfliip of the lands, 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 fuch conditions are not contrary to the general laws of the country to which the lands belong 5 he may grant them to be holden only at his will and pleafure, (though fuch a flight tranfmiflion of them would hardly deferve to be called a grant J or 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 he may require either a fmall, or a very heavy, annual rent to be paid r 53 T paid for rhem, as he and his grantees (hall dgree. But, when once the grant is made,* his power, as owner of the land, ieems to me to be at ifn end, and he will have no right to ^pofe any new rents or coiiditionft on them ever -after, provided they pay the rents and perform the conditions diat have been originallv^greed on. There is nothiogf thereto c in tlikcirCumftancd of the king's being owner of iU die lands of a conquered country, immediately after the conqueil of it, that L.n give him the leaft: {):adow of aright to impofe laws or taxes on the inhabitants of it, whatever other grounds th<gre may be for fuch a power. Not to mentioh that it hardly ever happens, in modern times, that the con- queror of any country belonging to one of the civil'zed ilates of Europe becomes the Owner of all the lands of it even for an in- ftant, it being almoft the conftant pfadice, in fuch conquefts, to grant to the inhabitants of the conqueied country the quiet pofleilion of their lanas immediately upon their fubmiffion to the conqueror. And this, we have feen in par* ticular, was done in the cafe of the ifland of Grenada, where all the inhabitants who held ' lands i ■ii.^ ■',^1 ■ r\ t ^4 r bnds in it, were continued in the enjoyntcnt of tJicm by the articles of the capitulation and the peace : fo that no fuch pretence to alcgiflative power derived from the original ownerlhip of the land, (weak ..s it is,) can be applied to that ifland. But indeed this argument, for the legiijative power of the Crown over conquered countries, which is grounded on the original owner(hip of the knds of them, is too weak to need a con- flirtation, ;pnv.o oib i^:'^ '■»♦:,". ofiu-: ■Jrl"' i ••) sf\r ^ I ( ■ ' . V - ENGLISHMAN. io,-un '...i <-tij ( . .4 ; JO I think of itj in the fame manner as you do, and wa$ therefore half- inclined to pafs it over and lay 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- vcrfed with in fuppprt of this legiflative power of the Crown. However, fince we Bave 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 mado on it, to which I intirely fubfcribe. , , ,- r-) .^ ih:\Q[ The r 55 1 The idea of deriving the legiflativc powtr of the Crown over a conquered country from its original ownership of the lands 6f the country immediately after the conqucft, (though that cfFeft 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 i) fecms 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 cealo and be extinguiflied, but is an authority con- ftantly in being, and incapable of any re- llridlion, 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 fiiall think it neceflary. This is a very diiFerent thing from the power of an owner of lands with refpedt to the perfons to whom he means to grant them, arifing from that ownerfliip, even fuppoling that it were lawful • • ' for Another re- mark to tke &me efl'cd. Of the nittrre and fotmda. tionoflegiil5- tive powci o. ver a civ-y fo- ciety. DlfFercncc becween this power £nd the power of aa owner of lands over the per- fons t) vbhooi he grants them. ■:J •' !' Ji ! r, '»>•' m ■Wf^^PSif^<»^;WW«lll,IM«*-"(*'','iyHW'"^".ll?,4""«?««l 'M.P :iM£\ [ 56 1 for fuch owner to require of his grantees, as a ncccflkry condition of their enjoying the lands he was about to grant them, that they (hould be governed by fuch a particular fyftem 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 mofl cafes,) he would only be- come a temporary legiflator, with a power to introduce that original fydem 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 ownerfhip j 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 Smpofing the original fyftem 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 Icgifla- tive power, which might be executed once for [ 57 ] for all, at the time of making the grants ; but then mud ceafe and be'extindt forever; which cannot happen to the true and genuine legiflative authority over a fociety, which is, as I before obferved, a permanent authority, and incapable of diflblution, fo long as the fociety, which is the objedt of it, continues to be a civil fociety. Now it is by confound- ing the temporary power of a granter of lands, arifing from his power of prefcribing 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- jedure, the lawyers I converfed vi^ith were induced to ground, on the circumftance of the king's original ownerfliip of the lands of conquered countries, immediately after the conqueft of them, their opinion that he was the conftant and regular bgiflator of them. •: * ^- -V ' FRENCHMAN. That fecms to be the mod natural way t)f accounting for their manner of reaibning i which, after all, appears to me to be fur« prizingly weak and inconcluiive. For who could ever have thought of deriving a right ^- Vol. II. 1 oi im ■^'M 1 1. w '*■!* U l;i n Abfurdconfe- quences that would refult from a fuppo- fition that the ovvnerfliip of lands could give the own- er of them a Icgiflative au- thority over the perfons who inhabit them. [ ss ] of making laws from the circumftance of being a great land-owner ? At this rate every rich man in England, who is polTelTed 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 lyftem, and double the rents he had referved in their leafes by impofing 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 fuppofe, of a private pe- fon> 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 legillative authority over the perfons who inhabit it, it muft be confefled that fuch a conclufion might juftly be inferred from it. But in the cafe of a king people arc apt to think the reafoning lefs abfurd. The [ 59 J The fplendour of majefty dazzles their ima- gination and overpowers their underftanding. And yet, I prefume, there are few politions in the law of England more certain than this, " That, if any county in England, as, for inftance, Yorkfhire, (which is the largeft 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 theieby acquire one jot more legiflative power over the inhabitants of fuch country, in confequence of fuch fole and full poffeflion 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 legil^ 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 imperfed and temporary legidative 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 ditioi> The king, by becoming owiier ot" all the lands of any particular counlyinEnj- land, would not thereby acquire any power of making laws by his fingle authority tor the inhabi- tants of it. [ 60 ] dition annexed to the grants of land he might be willing to make them in it ; but he mufl either not make any grants of land in it at all, or he mufl make them upon the ufual and known conditions upon which, by the laws already in force, lands may be granted in England. And every condition, annexed to a grant of land, that (hould not be agreeable to thofe laws, would either make the whole grant void, or, at leaft, be void itlelf. Thus, for example, if ihe king were to grant a parcel of land in fuch county to a man and his heirs for ever, with a condition, that neither he nor any of his heirs (hould 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 (hould become void, and the land (hould revert to the right I At of the grantor immediately upon the taking of the firft neceflary ftep towards fuch an alienation, and before the alienation is com pleat j that condition of the grant would be void, becaufc it would tend to create a per- petual eftate indefeafibly vefted in the fame family, or line of defcent, which is a thing the laws do not allow. In the fame manner, if the king i >\' li 1 1 ml* [ 6i ] 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 ?innex to his grant any other condition that was contrary to the general Uws of England,, as, for inftance, a condition that the youngeft fon fhould 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 (hould be governed by the laws of Hanover, or the cuftom o£ Paris, inftead of the laws of England, the faid condition would be void, and the grantees would be bound to obey the laws of England. This reftraint upon the power of the Crown The true with refpedl to granting lands in the cafe I reSnt^ uZ have here fuppofed, does not, indeed, arife ^^/g^^^**^^ * ^ from any right, or privilege, of the grantees lie in fuch a themfelvesj who, naturally, ought to be bound by every condition to which they have freely confented: but it arifes collaterally from I' i '■ i'.' I iV 'St? 1 jj It- !»(:« f 62 ] from the intercft that the other fubjc(fls of the Crown have, that no unreafonablc, or inconvenient, lav^s, or cufloms, (hould take place in any part of the dominions that are fubjeft to the fame fovereign with them- felvcs, and which by means of the neceflary connedlion between the feveral parts of one and the fame kingdom, or empire, might ultimately be prejudicial to themfelves. 1 ' f ' 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 fyftem of laws different from the laws of England, as a condition of the tenure of their lands : much lefs would it thereby become poffeffed of the conftant, or perma- nent, right of making laws and impofing taxt'S on its inhabitants, which alone de- fcrves the name of the legijlati*we authority^ and which is the authority afcribed to the Crown in the ifland of Grenada by Lord Mansfield, before the ilTuing of the procla-^ mation t 63 ] mation of Odlober, 1763, by which th# Grown relinquifhed it. b: , 1 t ', ... . . 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 ownership of the lands of them, fince, for the mofl: part, no fuch ownership 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 reafon 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 p legiflative power in the Crown. Itmuftfurthex be obferved that, in almoft all the coB- quefls made by the Crown cf Great-Bri^ tain in modem times, the king is pre- cluded from becoming owner of all the lands of the conquered countries hy previous capi- tulatiuns per* mitting the inhabitants to keep their lands. End of the confideratioa of the argu- ments derived from reaiba and general principles ia fupport of the king's legifla- tive authorit|r over conquer- ed countries. Ofpreceden» and other ar- guments from authority in favour of fuch - t^ i' ■m^ 5 m i i*>ili I 64 ] If I remember right, you, Tome time ago, faid that Lord Mansfield, in delivering the judgement of the Court of King's-Bench in that cafe of Campoell and Hall, mentioned fomc fuch arguments. I therefore beg you would ftate them to me, if it is not too much trouble. - •• ; ^ ^ ■•' • ,;r;»: -:'i.'a: ENGLISHMAN. 1' I'll ! I ! • Lord Mansfield did mention two arguments of the kind you mention, the one derived from the hiftory of the countries conquered by the crown of England or Great-Britain, the other from the opinions of Englifli judges and other lawyers of eminence occalionally given upon this fubjed, though without any formal decifion of the point by any court of juftice in the determination of a caufe which turned upon it, < ^ c: J".i FRENCHMAN. Of the arga- Pray, let me hear what were the argu- hictory in fa- mcnts from hiftory in favour of this legifla- I'eglliatite'^* tive authority of the Crown. For, if thefe power of the gj-g ^lear and politive and uniform, I fliould Crown, * think they muft have more weight than any • other. ENG. [ 65 ] m i ;.. , ENGLISHMAN. They certainly would defer ve great regard, if they had the qualities you mention. But, as they are, the greater part of them appear to me to be intitled to very little. The in- flances mentioned by Lord Mansfield of countries conquered by the crown of Eng- land before the Union, and of Great-Britain (incc that happy period, were thofc of Ire- land, Wales, Berwick upon Tweed, Calais, Gafcony, New- York, Gibraltar and Minorca. P m^' <f'i '1 "f' f i a Concerning Ireland his words are as fol- lows. " The alteration of the laws of Ire- land has been much difcuflcd by lawyers and writers of great fame. No man ever faid the change was made by the parliament. No man, unlefs perhaps Mr. Molyneux, ever faid the king could not do it. The fad:, in truth, after all the rcfearchcs that could be made, comes out clearly to be as laid down by Lord Chief Juftice Vaughan -, namely, Thit " Ireland received the laws of " England by the charters and command of " king Henry the 2d, king John, Henry Vol. II. ' K ' *' the Lord Manf- field's allcr- tiousconcorn- ino;thclcgifla- livc power cxerciicdov'cr li'clund. ff '■ ¥ ft. ItMi. •^1 im : W] i I 11 ,! (C (( f( A I <( <( C( ti (( (C <( (< Remarks on them. Il m • ■■ [ 66 ] the 3d, Sec, which &;c. is added by Lord Chief Judice Vaughan in order to take in Edward the ift and the other fucceiTors of the princes he had named. That the charter of the 1 2th year of king John's reign was by afTent of parliament in Ire- land, Lord Chief Juftice Vaughan (hews clearly to be a miftake. Whenever a par- liament was called in Ireland, that change in their conftitution was without an adt of parliament in England, and therefore mud have been derived from the king." This is all that is faid by Lord Mansfield concerning Ireland j which at mofl proves that, five hundred years ago, the kings of England, upon the conqueft of Ireland, exercifed one fpecies of legiflation over it, to wit, that of abolifhing the Irilli laws and introducing the laws of England in their flead. But it does not prove that they be- came the permanent and general legiflators of Ireland, and made and unmade laws there, and impofed taxes upon the inhabitants, at their pleafure, without the concurrence of either the Englifh or Irifli parliament -, which was [ 67 ] was the legiflative power fuppoffd by Lord Mansfield, (if I undcrftand him right,) to belong to the king in the ifland of Grenada, before he had diverted him (elf of it by hio proclamation of Odober, 1763. Now, as to this one fpecies of legiflation, that of in- troducing the laws of England into the con- quered country, as it no way leflens the rights and privileges of the Englifli, or con- quering, nation, nor tends to give the king new and dangerous powders which rnny 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-fubjeds, 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 in fiances ; as, in raifing taxes upon them ; eftabllfliing a religion amongfi: them -, compelling them to ferve as foldiers in regular armies othcrwife * K 2 thai) I 1: ' vt. \iM m m IMAGE EVALUATION TEST TARGET (MT-3) ^ ^ 1.0 ^I^Ui >u IM 12.2 u lift 1.1 £ la 12.0 ■it Photographic Sciences Cdrporalion 23 VVKf MAIN STRiiT WfBSTER,N.Y. MS80 (716)872-4S03 [ 68 ] than for the defence of their own country j altering the mode of adminiftring judice amongd them, fo as to make it different from that of the Englifli, or conquering, nation, as well as from that which took place before the conquefl of the country ; intro- ducing, or abrogating, amongd them the cuftom of having flaves ; altering the laws of tenure, or of inheritance j or the age of majority or difcretion ; or the privileges of marriage j or the legitimacy, or illegitimacy, of children in certain cafes 5 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 j and of making other, the like, changes in the civil condition of the conquered people. All thefe adls appear to me to be adts of legiflation of a very different kind from that of introducing the laws of England into the conquered country. The former are the ads of a real and general legiflator : the latter may reafonably be confidered as an adt of the executive power, by which the king, adling as the great executive magiflrate of the Eng- ' lifh [ 69 J liih nation, executes their prefumed intention by extending the operation of thofe laws which have already received the fandion of their approbation. And for this reaibn this indance of Ireland appears to me to have but little weight with refpe<fl 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 Odober, 1763. But, befides this objedion to the above argument drawn from Ireland* we may ob- ferve that great alterations have happened in the conflitution of the English govern- ment iiiice the days of king John, and, for the moft part, in favour of the liberty of the fubje<5):, 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 prefcnt. Now, if we purfue the hiftory of Ireland, i '•• i i,« $ ' A£Is paffed by the Englifh parliament concerning Ireland. Ireland, we fhall find that, in after times, the parliament of England concurred with the king in making laws for the people of Ire- land J of which there are the following exam- ples in the colledion of the Englifh Statutes. .>»vJ ^fi ijl iiii In the reign of king Henry V. there is a flatute of the Englifh parliament, which or^ daios, that all IriQimen, who have benefices or. ofiices. in Ireland, fhall rcfide upon them, on pain of lofing the profits of them. And in the third year of the reign of king William and queen Mary, jCkft after the late redudtion of Ireland to the obedience of Eng- land, (which. is a time much' firter to be ar- gued from, on a point refpe<Sting the prefent conftitution of the Englifh government, than the reigns of king Henry II. and king John,) there is an ad: of the Englifh parliament :re- fpeding, Ireland that is of i ]great importance. For it fettles the oaths which arc to be taken by the members of both houfes of parliament in Ireland before (hey can fit and vote in their refpedive houifes, befides many other matters of great confequence. And in the eleventh ^•^•i*r«w ■» _ year [ 7' 1 year of the fame king William's reign there is another adl of the Englifh parliament which enads that the forfeited eftates in Ireland (hall be fubjed to the fame quit-rents as they were fubjedl 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 13th day of February, 1688, (hall be for ever after appropriated to the fupport of the government of Ireland, and (hall be unalienable j which, by the bye, is precifely the fame regulation which, we have agreed, would be extremely proper to be made with reipedt to the quit-rents of North- America. f ...I' I Mj I JtJ In queen Anne's reign there are four ads of the Englifh parliament concerning Ireland. And in the (ixth year of the reign of king George L there is an adt of the Englifh par- liament to the following purport : " To de- clare that the kingdom of Ireland ought to be fubordinate unto, and dependent upon, the imperial crown of Great-Britain, as being infeparably united thereto j and that " the cc cc cc cc k ' ^ '4 J..^ ,2ji ' .^'.r--'" I 72 1 " the king's majcfty, with the confent of " the lords and commons of Great-Britain << parliament, hath power to make laws to «* bind the people of Ireland." ^^ ' Conclttfion drawn from the faid ads. ' From thefe inflances it is plain that the king and parliament of England or Great- Britain, have exercifed a legiflative authority over Ireland ever fince the reign of Henry V. that is, for the fpacc of 350 years, andconfe- 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 pradtice of the kings of England, in making ordinances of im- portance for the good government of Ire- land, to adt in conjundlion either with the IriQi parliament or a very refpedlable council in Ireland, which confifted not only of the king's ordinary counfellors in that country, but of the prelates and great men thereof, and others of the mofk difcreet and refpedlable Irifh gentlemen who dwelt in the neighbour- hood ift. [ n \ hood of the place where fuch council was to meet, and fuch ordinances were to be paiTed ; which council was a kind of /o^j/, ax partial^ parliament for that part of the country where it was held. All this is very manifed from the following fhort chapter of a certain ancient ordinance, thought to have been made about the 3ift year of the reign of king Edward III. which is intitled, OrdinatiofaBa pro flatu terra Hibemia. Item volumm et pracipimus^ quod nojlra et ipftus terra negotia, prafertim majora et ardua^ in confiliis^ per peritos confi- liarios noftros^ ac Praiatos et Magnates^ et quo/dam de dijcretioribus et probioribus bomini- bus de partibus vicinisy ubi ipfa confilia teneri contigerity propter hoc evocandos-, inparlia^ mentis veroper ipfos Conjdiarios noftros^ ac Pra" latos et PrpcereSf alio/que de terra pradiSld^ prout mos exigit ; fecundiim 'Jufiitiamy Legem^ confuetudinemy et rat i one m, traStentur^ dedu-* caniur^ etfideliter^ (timore, favor e^ odio, aut pretioy poftpojitiSi) difcutiantur et etiam termi^ nentur* A remarkable paflage in an old adl of the Englifli parli- ament in the leign of king Edward III. concerning the legiflatioti tobeexercifed over Ireland* . .-. ;»:^ In this paflage we may obferve two things ; I ft, that parliaments in Ireland are fpoken of . Vol. 11. L w$ f L I mm i I \r «f4 .< ■■>■ ^ , t % [ 74 ] as known artd cuflomary aflemblies even in that ancient timcj for that, I prefume, \s the mieanihg of the words, frout mos exigit ; and, fecondly, that even in the council, (which is diftinguiftied from the parliament,) there were to be, befides the King's coixnfel- lors, (who are denoted by the words peritos confiliarios noftros) fbme prelates and great men (expreflfed by the words Prcelatos et Magnates) and fome other men of refpedtable condition and charadter, who were to be fummoned from the neighbouring diflridt to the faid councils for the purpofe of making thefe ordi- nances ', which is exprefled by thefe words, quo/dam de difcreiioribus et probioribus hominU bits de parti bus vicinis propter hoc evocandos. It can hardly be pretended, when one conil- ders this paflage, 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 Md the King might lawfully do in the illand of Grenada after the peace in Fe- bruary, 1763, and before the proclamation in the October following. • .Whether -r. / lU rd Whether or no the kingdom of Ireland is now fubjedt to both the parliament of Oreat"- Britain an^ itsowi^ parliament, and how and when it became (o, are queflions of confider- able difHculty, but which it is by no means neceflary to difcufs on the prcfent occafion. AU^h^t I am now endeavouring to prove is/ that the, K-ing is not now, and has not been fpr more than four centuries, (namely, from the 31ft year of the reign of king Edward m.) ^nd does, not appear clearly to have been in any former age, the fole legiilator of that country, fo as to afford a ground for fuppodng that he became fo in the ifland of Grenada by virtue of thp c:onqueft of it» . . ,.. FRENCHMAN. ' ■i r IS. Ji i> \^ n i\i i\ Ls, ..^, I think this e^^ample of Ireland makes rather agawji than /«>r the fuppofed Icgiflative authority of the Crown in the iflaiid of Gre- nada; more efpecially after that adt of the Application Britifli parliament of the 6th of King George Lg u^d ^conl I, which feemsto meto be a fort of general JanTfn^The declaration of the law upon this fubiedl. For, fta'"'^ of the •r -.1. • /I r • J , ,1 , 6th of Geo I. It It be jult reafoning to declare, ** that the to the iiki 4 kingdom of Ireland ought to be fubordinate ""^ ^'^"''^'' unto, and dependent upon, the imperial ----:- L 2 . " ClQWlX cc (( JiJjS'K '•( • A '!:;.. 'A-. * ..-ij, -"♦ t 7«; J " Crown of Great-Britain^ as being infepa- " rabfy united thereto ; and that the kfng^ *.* with the confent df the parliament o^ *' Gitat^'Britain, hath pdwer to make law9 " to bind the people of Ireland 5" it teems to be equally juft to conclude the fame thing' with refpedt totheifland of Grenada, -thlat is, that, as tlie iaid ifland of Grenada is'^nfepa" rably united to the imperial Crown of G/tat- Britain by the final cefTiOn made thereof to the faid Crown by the king of France in the late treaty of peace, it ought to be fubordi- nate 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. n,.>- ■■.Vint- *Ui I*-- englishman; mil I'l ■■ 1 11 I own I am much inclined to reafon in the fame manner, and more efpecially (ince the year 1766, when, upon the repeal of the Confirmation ftamp-adt, a fimilar declaratory adt was pafled opinion of the with refped to the Br^tifh colonies in Ame- parliamentary • right of legi- .i-.i.i.o. . nud, flation over the ifland o? Grenada, by the famovis cleclaratory a£l of par- liament in the year 1766, concerning all the Britiih dominions in America. (c li 71 1 rica, which is cxprcflcd in thefc words, to! wit, " nat the colonies and plantations in ** Afherka have been^ are^ and of right " ought to he^ fuhordinate unto, and dependent <* uptn^ the imperial Crown and Parliament ** of Great-^Btitaini and ihat the Kings '? Majefty, by and with the advice and confent ^ of the L6rds Spiritual and temporal^ and the " Commons of Great-Britain^ in parliament ajfembledi had^ hath, and of right ought to have, full power and authority to make laws. *^ andfiatutes of fuffident force and validity to " bind the colonies diid people of America, fub" ^* jedis of the Crown of Great-Britain^ in all " cafes whatfoever" This ftatute makes no diftindlion hetWeen fuch colonies and planta- tions as were properly colonies, or were planted by emigrants from Old England (iiich 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 iitu- ation, that is, fubjedt to the legiflative autho.- "" . . rity cc « M i '«'^ 4 »?f »«,■■ A if '^ . 11 '■ H ■f-, I 1^ [ 78 1 rlty of the king and parliament of GreaN Britain adting conjointly, but not to that of the king alone. And, as this (latute is merely declaratory of what the law was at the time of pafling it, and does not purport to transfer any legiflative power that had hi-* therto been veiled in the king alone over any part of America, or that might hereafter le- gally become veiled 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 (hould have thought it ought to have been confidered as a parliamentary deciiion 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 qf the Crown alone, ' - - - -.vj ^/t^vi ,' ( ii £if!'ir;iV ■R 'iUi' H^r.// FRENCHMAN. *r)v:i I. *e - It feems to me to put an end to the whole queftion. However, as we have entered upon this fubjed, I beg you would go on with it, if not as a fubjedl of law, yet, at leaft, [ 79 ] Icaft, as a fubjcd of hiftory of a peculiar and curious kind, and inform me what Lord Mansfield faid concerning the exercife of this fuppofed legidative 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* .f ,\ ENGLISHMAN. What he faid of Wales was Jn thcfe Lord Mam- words. « As to Wales, Mr. Harrington is ^^l[J^Z " well warranted in what he has faid upon »"S Wales. " the famous Statutum Wallia^ or Statute of " Wales, in the 1 2th year of the reign of " Edw. L That ftatute was certainly no " more than a regulation made by the king, " as conquerory 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 afTent of parliament, to bind the fub- ** je6b of any part of the realm. Tliere- */ fore, as he did make laws for Wales with- <( out ^1 k' ft; 3l I V"4 n j \''\ r tx m iilteniarks on them. 1 80 1 *^ out afient of parliament, the clear coitfe- '* quence is, that he governed it as a con- ^ queft J which was his title in h&, and «* the feudal right but a fidtion." This was all that Lord Mansfield faid concerning the kmg's legiflative power over Wales, FRENCHMAN. Thefe words appear to rae to be rather ob- fcure and unfatisfadory, coniidering the im- portance of the propofition they are intended to prove. For^ in the firft place. Lord Mansfield feems to invert the argument that was neceiTary to his purpofe, and, inftead of (hewing that Wales was confefledly a con- quered country, and that king Edward, con- sidering it as fuch, grounded upon that cir- pumflance a right of making laws for it by his ^ngle 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 confidered it as a conque{L This reafoning may be jufl: ; but it is too fub>- Xlp and r9$i\ed fpr my comprehenfion, and *- f ferves » > ob- con- con- £ 81 ] ferves only to perplex me. And, in the ie- cond place, I oblerve that Lord Mansfield won't take king Edward's word, (as it is given us in the preamble of this ftatute,) that Wales was a fief of the Crown of England, or that he confidereditas 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, lam 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 Crowp of England before king Edward's redudion of it, or, at lead, that king Ed- ward thought fit to confider it as fuch, and treated it as if it had been fuch ; which, with refped to the prefent queftion, comes to ex- adly the fame thing, becaufe, if it was treated as a fief, and not as a conqued, 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, 1L M quered 11'.' I i ft J :r> fci i' f. llii I ? r i ill An inquiry into the truth of the fafls Afleited by Lord Mans- field concern- ing Wales. Firft faa. StcoRd fa£l. [ 82 ) . quered country. But I am fomewhat curious to know how the fad flood upon this fubjedty both with refped to the feudal dependance of Wales on the Crown of England before the reign of Edward I. and with refped to the authority by which king Edward made the regulations contained in the Statutum Wallia. Is it true, in the fireplace, as Lord Mansfield feems to alTerty that the princes wlio 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 pafTed the Siatutum Wallia by his iingle author!^ and without the concurrence of his parliament? Thefe are fads that are curious in themfelves, as points of hiftory, and on that account I atn deiirous to be informed of the truth concern- ing them, though, perhaps, they are not very material to the deciiion of the queftioa now under our coniideratbn, concerning the extent of the prerogative of the Crown of Great-Britain with refped to conquered coun- tries at this day, becaufe the conilitution of the Englifh government has undergone very"* V L \ confiderablc n ■;,i i h ] conliderable alterations fince the reign of king Edward I. though fome of the great foundations of it may be ftill the fanie. 'd^ ii. .-n. ENGLISHMAN. Your laft remark is certainly Very juft ; that the proceedings of the Crown in that remote part of the Englifli hiiJory are but indifferent grounds to iupport any doubtful claims upon, unlcfs they have been followed by fimilar ex- ertions of authority in more modern times, with the hiftory of which we are better ac- quainted, and thofe exertions have been ge- ricrally acquiefced in and approved X)f. But, to come to the fa€ts 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 JVallia itfelf, to fee how the truth was concerning them. And the refult is, They ao not>. that both thefe fads appear to me to be other- appeal"?o' bi wife than Lord Mansfield has reprefented as Ld- Mans. ^ " field has rc» them: the country of Wales having not been prefer ted totally independent of England before the x-edudlion of it by king Edward L but in a M 2 (late theiHt H ■■ iT T# Proofs from hiftory, of the feudal fubjec- tion of Wales to the kings of England be • fore the final conquell of it by King Ed- ward I. [ 84 ] ftatc of feudal dependancc on the kirtgs of England, as king lidward affirms in the Statutum WaUia\ and the faid ftatute pot having been made by the fingle authority of the faid king Edward, bjt wit!i the aflent of the great men of his kingdom, or the pro- ceres regfti, 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 English hiftory, and in the Statutum Wallice^ upon which I ground thefq opinions, t , . In the firft: place, then, I find in the hif- tory of .Matthew Paris, (one of the moft re- fpedlable of the old Englifh hiftorians,) the following paflages relating to ancient vidories gained by the kings of England over the peo- ple of Wales before the final conqueft of it by Edward I. even from the time of Willianx the conqueror, which was more than, two centuries before the faid conqueft by king Edward. And moft of thefe victories were concluded by a feudal fubjedtion of the coun- try of Wales to the Crown of England, agreeably ]iai [ 85 ] agreeably to king Edward the firft's declara- tion in the Statutum Wallia^ 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- ^J J^^ *5J8J* liam the Conqueror, that faithful hiftorian Ham the Con- relates that in the year 1079, (which was the ^"®'^°'"' 13th 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 . ^oiuitry. This is expreffed in thefe words* Anno Domini loyg Rex Anglorum Willielmui in Walliam duxit exercitum copiojum^ et earn Jibi fubjugavity et a regulii illius ditionis bO" '^ magia et Jidelitates accepit, ;'^' '^ • ■ ■,' • ' •" ; <.,- .'•'>• . The next king, William Rufus, made an in the reign expedition againft the Welch, which was R^J^f '""^ lefs fuccefsful than his father's. Yet he by no means yielded up thofe claims of feudal fuperiority over them which had been either cftablifhed, or confirmed, by his father, and which feem to have been quietly fubmitted r to « -^ I »■ < * • I T r 86 ] to during the remainder of the Conqueror's Tcign,. and for the firft years of William Rufus's. Matthew Paris's account of this ex- pedition is in thefe words. Eodem anno (fci- licet y anno domini 1094^ Rex Willielmus in Walliam exercitum ducere feftinavit^ quod anno praterito Wallenfes^ multis "Normannorum OC" cifiSi procerum conjractis firmit&tibus, cafiello Montis Gomerii direpto et habit anti bus in eo interfeSiis, igne et ferro finitimos depopulati fuerant. Rex autem Willielmus^ omnes fines Wallia bojliliier ingreffus^ cum^ per montium diverticula etfylvarum derifitatesy ipfosperfequi non valerett conftruSlis in confinio cajiris, ad' propria remeavit* ^' i^f'UV ■~f.-> -^ ' In the reign of Henry J. The next king, Henry I. reduced the Welch to fubmit incirely to his pleafure, as appears from this pafTage of Matthew Paris. Eodem anno (fciiicet^ anno domini 11 13 J Rex Henricus, exercitum ducens in Wdlliam, fub^ didit fibi Wallenfes pro arbitrio regice volun^ tatis. And in the account of the tranfadlions of the year 1 1 2 1 the fame hiftorian has thefe words. Inde autem (fcilicet, a Londoniis) cum rex adJValliam tender et cum exercitu copiofo, . ; Wallenfes^ *!ll t 87 ] , WallenfeSi ei fuppliciier olrviantes, concordati funt cum ipfo juxia fuam magnificentiam VO" luntatis, s ^ . '" . ■, ■ . '\ In the reign of king Henry II. in the year !„ the reiga of Chriil 1 1 ^jy the WcKh were again obliged ®^ ^^^* J*- 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^ iia ut duo milites de tot a Anglid tertium iiwenirent, ad expugnandum Wallenfcs per terram et per mare, Intrans ergo Wttlliam rex^ extirpatis JyhiSy nemori- bufque fuccijisy atque viis pat ef adit Sy caftrum "Roelent firmavity alias munitioneSy antecefortbus ^ fuis furreptaSy potenter revocavit, cajiellum etiam Bajingwere rejlauravity ety Wallenfibus ad libitum fubjeSlisy cum triumpho Angliam repetivit^ Apud Suanduum * multorum cepit bomagiay fcilicet^ nobiliorum, : r' . ^1 In the reign of king John they were again !„ the reiga invaded by theEnglifli, and reduced to fub- o^kingjoha, jedion to the Crown of England, and were forced to deliver up to the king twenty-eight perfons by way of hoftages for their conti- nuing ♦ Probably Saowdon. I> ''^ mr. ;y m I 88 ] nuing fubjedl to him for the future. This ia exprefTed by Mathew Paris in the following words. Anno gratia milleJimOy ducentefimo, undecimo (A. £). 1211^ Rex Angloriim Jo^ bannes Juit ad Natale Domini apud Ebora^ cum, prafentihus comitibus et baronibus regni, ^0 etiam anno idem rex apud Album monafte* rium, magno exercitu congregato, profeBus eft in H^alliam, oSiavo Idus Julii : ubi infortttu^ dine gravi, Wallia interior a perluftram, ad Snaudunam ufque, obvia fibi quaque conterendoy penetravit 5 reges omnes et nobilesfme contra^ diSiione fubjugavit, De fubjeStione in pojle^ rum obfides viginti oBo fufcepit ; et inde cum projperitate, in die ajjiimptionis beatcs.s^aria^ 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 piade king John colle6l 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 \. * perfons. I &9 1 pecfbns^ who htd hieen put intal^isl hands' the year before ashoilagas for the Hdclitp oflthe Welch. But he wais pcrfuaded tddefifb frqni hia.: main purpofe, of inVadiwigr Wales;- by fome intimattionS( he received of: sn intention in his/arniy (fayithe gteatcft part of whom he was defervcdly hancd: for! hiki JDiilumerable ads of tyranny ai!id opprcfHon,) either to takb away, his life th'emfcbes or deliver hlra into the hands of the Welch. Nor did he aften- wards refume his defign of invading Wales and reducing it again to his^ «)bediebce, the remaining part: of hisl reigns (which was bvft four years, ) being full of inteiflUie troubles. But he does ndt appear t6 bale ever done any thing that tended to aiifurc'enderrdf his claitfi of a feudal fuperioilky.over the Welch, or of his right to the homage of their ^;inces. ':^dA In the year 1 23 1 > in th^ reigh oi biog T«^ the reifrn of Hen^y III. (who was the fon of king Johni and the father of Edward I.) the Welch algain , . made incur fions into England^ near Mont- gomery.caftle, under the command ,of Lew*- ' cllin their prince, and gained an advantage pver the Englilh forces belongihg^to that ,-VoL. II. N caftle; ) 1 -I It.™ '■' ■'l''ll!l-'t m ■'I i if 'It «; f 90 J cadle: which occaiioned 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 tlone and mortar, and put agar- rifon into it, in order to retrain the Welch •from making the like incurfions into England for the future. This caftk had been de^- ;flroyed by. the Welch a coniiderable number of years before, .iIdLW :^r[t k* ^Uijul oilt .i , .. ;..:;>.«v;iii "i^ ni:ii':ib dd :j/ii fhi uluu?/ Submiffion of - In tbd^ycar 1237. Lewellin, prince of wXs.tokfng jWales, fent.an embafly to king Henry, re- i2i7' *" prefenting:tb him that he was now grown old p.nd infirm, and defirous of living in peace and harmony with alL the world, and foUi- citing the friend(hip -and protedtion of the king of En^aiid upon that account, and of- fering, in order to obtain it, to fubmit him- felf and all his poflefTions to the government andprotedion of the king of England, and' to hold hi^ lands of him in fealty and friendfhip, by a perpetual and indiflbluble cbmpadb, and, whenever the king Ihould engage in any military expedition, td affifl: jbim withfQldidrs^ arms^.horfes and money; T.- ' - to f* .t C '9' ] to the feeft of hrs ability, as htsfnithml vdflal or -liegeman. The words of .^Matthew Paris ^rtfthfcfe'j quod'fefuajue ommU'Jitioni ac iu- Hda re^s Anglor'um ftihd&e d^mit^^^t de eo Unt¥h ftrtai fUds iH^'Jide er^dmiikM, inito ^(Seden- iPidi/oiuMii-Ht\fi rex iH^'h^tionem ^rm effei^ militi)d,-krmisy el-^iqufi-et the^ fmroy Jeeundhw^re^ fUds; ut fkm fidelity turn 'fidtlkir 'adjieoMo prom&veret, ^ ' 'Thw profwfal JWas accepted by king Henry, dnd'.cohfiritied 1^<Yevcrkrof tfccgrerft men 6f Wales, (thfe -magfiatei- Wdlh'a J ^eh^vtW as % to)fi' two bf^ -Abps (Of Hcr*f(^ and Chciftef dAthe part of pririci Lewefli-n hiaifelf. iNiivVlrOfheP^re- -'going words cofitain the'^^erj^d^fiflition of <i ^cflf, or territory hplden of '^rtothet by a feiw. •^alandriifJiKtary^tenure,' iJ J^c-i );{Wid ,:■:■[ Remarle.ihle' words, de> ' feudal fubjcc* tion* i.i^i V.i ,U'.: . '^ Prin(*e LeweMirf'ftt the timie'of thfe tHfcity Sv^s much affllileS^by the^mfck?ou« gridVii. <lutifulconduabf1iis eldeft i^rf Oriffiiij-who -Wa's'pt'eparing to^thake wal: upon'him ift bfrd^r t<j>i'd4fp6{refs hirti of Khe^gbverrikfcnt, Aftd it was, ir^'a grea* rt^^fuf-e, WMiPa VigV/^tcy rcl- frefs the infolefttfe of this fcyn'that^ til! applied on lihis occafion to kifigvHenry fei- feij5-^i>^«e6- ' -^ N 2 . tion. Prince Lew- cllin sdiliatii- faction ac tiie ^(ladi^aful ibi?- eidcil Um^^ ; Ha retluces CJriiRri to .(.nil Death ofl^ew- Ltlin,inApril, 1240. Diiljnfions bcuvecn his ions Griffin and David. The/oiiAiler'is trekchti^dtidy apprehulnded and i in pii^ifo li- ed b^' David. [ 9^ I tion. ! *)^i^ TPinfequeuce ws^ fuch a^rh<; . b^4 and reducjBC^h^m t9 a. ^gmplea^ f^bmj\Q|f^.t9 his wUl^N\ijaf9|iiuqb..,ih^t,^ M,^feWf ,he foiW)4,/l?i%^fcat|[i «ipj>roa:iJhiflgij;h<^, QhUgiai W^^ ii^rtn his fe^oH^c^ /DAyi#i /,,wh^\w^ Gpifltn'T^-jy^ilPgar bf<)th»(rr; ^dI^ovy«4iifir; ^^ 'fqop ftfew «R) wit, io jAp^ •(i^4^>-^Rw|t ^fter ^Jt^eWfSUiiiir'p dca^h .pfif^iii .^^foft4 ,*9iA^^^^ ^if totfeis ftwlpmertt, a|^ la 'W,air |4pfe. b0- .tw^^n tbcri'wOlbro.lihers, • tiUPnyid, Js^ytiiBj a^ .of tr^a(}hpify,)gpt.Qriffii>;int<> his(,pw^Qrfiftn$i ihrpwhlm imp |)r^n:3f,UpOit twlwb Wi^rffe party, having loft thelfii\mi^'*M!iffi^%fifitS> the government of David. This adt of jtjrc^ph^vy <tor^ftfld ia ;^r>: invitation, nli^ich jpavi<i.g^we;f^.b}? hiothei; QpiSrt 5P cpme 904 ,i?l^t^)>if?>i?l> %T^?rt^in pke^irtp treat .of ;p?^Cl5 ttpg^h^JrrJiftvfeiijft wJ)^^. Gri®!!, confiding in jPavi4's pji(i>jni(f of.(af^ty to his pcr{6ni».)p3mp 1^ ^,p^a<;pgyqlin^n^r> an4i M the cpm^aoy pf Rob€|rti hiftiop of tBanggr, ; an^^ ptfee^ jjwt n^ft0 pf iValjes, R^vjd catifed ; hi^ to i 93 ] rhe ftpprohcndcd and fcnt to prifon, notwithi ii^rtding all tb^iremonftranccs that were made .agrfioft luch gqirocceding by the faid bifhop Complaints und other ^rcat men in whofc company Grif- thu "aV of trrnchcry tg king iJcnr/ Aa bad come to the laid meeting. The hf- flndp of Bangor, through an honed indigna- iiOT\ ftt this pi0<:c of treachery, excommuni- .^arcdi prince David, and retired from Wales liati^ Sngl«^"^> and thisre follicited king Henry Hq oblige Qavid to fet his brother Griffin at li|3efty, whonfiho had fo perfidioufly thro\yp lin^ppfifon.: Aivi the biftiop urged the king to/do (a to pr^y^nt a blemiih in his own hon- ©arfrom a^lonnivanc?, at fo bafe ap ad of in- ^»ft&^ io.princq.DaWd, nei^ita talifque fa- 9iiti9ro[arira}tfgr^io (feys Matthew Paris,) re- imtas regiones curiamque Romanam, in honoris regit Jt^nem, macularet'y which is agreeable to tb^\nOtiop that Wales was ^t that time a Aef fjf th(5 crown pf England, by reafon of wl^ich it became, l^t duty of the >king of i^^gUpdy, as up|i>qr, .Lord of it, to attend to the compUi^tM^aiie ,by it's inhabitants of ads of 4nju{lice cofxvmitted by it's princes who were his vaffals or liegemen. Accordingly it; appears that^ upqn this complaint of the bilhop I' ^il JM t I m The king commands David to fet Griffin at li- berty : which David refufcs to do. A propofal jnadebjGrif- tin to king Henry. t 94 ] bifliop of Bangor, king Henry wrote -to prince David to command him to fet his bro- ther Griffin at liberty. But Divid refiifed to do fo, and afTured the king thatj if his brother were at liberty, Wales could never be at peace. Thefe things coming to the ears of GrifRn, he fent a private- mefTage to k4ng Henry, bjr which he aflurcd him that, if he would ufe bis power to fet him at liberty and ihVe^ hwti ^ith the government of Ndrth-WalesVinftead of his brother IDavid, he would hold aU the country froin him, the-ftld" kiijg Henry, HM faklifully pay him evei^^yi^Pthe fuiri-bf tW6 'hundred marks, as iaiV- acknowledgment 'fefr -It, and would moreover afll ft him to- fobdu^ •all theMVelch who wcii/ in ' rebellion kgditift him, ahd who were fitiiated at the -gfcateft diftanc^' froito England and as yet unfjjbdued, -juvaret eurh dMigenter imntsMi rebelies Walkn- JeSylonginqiies et indomitos'^ fubjugare. This of- fer* of Griffin s (hews thk the greater f>art of Wales was at that time'confidered afrunder^'a feudal fubje<flion to the kings of England, •and thatohtyafew of the'moft remote parts wereconfidcred as hitherto unfubdued by them, (indomitdsj or not reduced to fuch fubjei^ion. ': .Ilk This to iro- l to ther ace. fHn, ;by I ufe fteaS I the rtt'^ gaitift tion. 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 peffons of confequence in that country. The king liftened to this propofal King Henry , , . J . J. I •/• 1 1 marches int«> and advice, and immediately railed a large waies againii army and marched with it towards Wales, ^l^^^^; declaring that he had found prince David to af"^/* 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 promifedhim a fafe condud, quern cavillatorem in omnibus in^ venerat et rebelleniy nee volentem ad pacts collo- quium^ juxta mandatum regis, etiam fub faho ducatUt aUquando venire. This is the lan- guage of a king towards a fubje^, and not towards an independent prince : fo that Wales niuft at this tifne have been conlidered by '■'• ' ' king ' :;: fe>|i V m I If ■rM .»•» I i- m u 1 z. l-r. i [ 96 ] king Henry III. and the peopk of England, as a^fief of the Crown of England, agreea* bly to what was afterwards afierted hf king Edward I. in the Stafutum Wallia,,^,:,.^tjt r.«.v; • r n riJiv; J 7 .:■ David treats with k. Hen. and promifes obedience to him, and de- livers his bro- ther Griffin nto his hands: but advifes the king to keep him in cuftody. The approach of the Englifh arvoy to- wards Cheftcr, together with; the confcioufnefs that he had many enemies amongd 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 pofTeflion of his principality of North Wales, which he was willing to hold of the king, and not only to take the ufual oath of fidelity to him on that account, but alfo to give him hoftages for the continuance of his obedience. But he at the fame time exhorted the king to keep prince Griffin in confinement, and aflured him that, if he did not do fo, but (liould fet that prince at liberty, he would foon kindle new difiurbances in Wales, even in oppofition to the king's au- thority. The king liftened to this propofal of David and followed his advice. Griffin was delivered [ 9f ]■ delivered by . his brother David into king Henry's hands, withfcveral of the rhbfl emi- nent per'fons of'Waks Who were given as hoftages fer the peaceable conduift of prince David and the* rbft * of the Welch nation. Arfd they were all, by thte king's ofder, car- ried tb London under a guard, and there kept in fafe^cuftody in the 'Tower of that city. Thcfe things Wei^e trahiiided in the fummer of the year 1241, and were complcated be- fore Michaelmas day. And, in eight days after Michaelmas, prince David himfelf, hav- ing firft obtained a fafe condud from kihg Henry, came to London and prefentcd him- lelf before the king, and then and there took an oath of allegiance and fidelity to king Henry, and foon after returned to Wales in pe. ce. Et poft oSfavum diem felUfandll Mi- cbaelis venit bavid Londmiim ad Regem ; ety fa5lis ibidem regi liganttd^ Jidcy et juramento cmnimoda Jidelitatis et fecurifatisy . . . dimif- fm in pace efl ad propria remeare. Rex igitur^ fc Wallid fibi fubjugatdy fine fanguiius effu- /tone et ancipitis belli cafilmSy de hoJUbus juisy Deo propitioy triiimphavit » Here again w^ have a proof that Wales was fiihjiigata regi "-Vol.il O A}lglic^ ii The king 5m- prilbns prince G iffin in the tower of Lon- don. A. D. 1241. Prirre David comes to Lon- don, and takes the oath ot al- legiinccto K. Kcnr/, ,1|| • ,'i\~\ -4' ■ V't f 98 } Atiglia, reduced to a feudal fubjedtion to the king of England, or, in other words, was a fief of the crown of England. Matthew Paris has recorded the very inilrument 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 poiTeilion 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 GrifHn, whom he then detained in prifon, and Owen, the el- defl fon of the faid Griffin, whom he like- wife kept at that tinoe 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 fhould be given hy the king's court concerning the faid Griffin's claim to a part of his father Lewellin's lands. The whole tenor of thefe inftrumems proves fo clearly the feudal fubjedtion of Wales at that period to the crown, that Matthew Paris, after reciting them and relating the attempt which prince [ 99 ] - prince David made three years after, to wit, in the year 1244, to withdraw himfelf from the faid feudal fubjedion, and become a vaiTal of the Pope, cannot forbear exprefling his wOndd: that the court of Rome ihould coun- tenance fuch rebellious and treacherous be- haviour, and exclainiing in thefe lively words againft ^ny plea of ignorance of the ftate of Wales which the defenders of the proceedings of thit court may be iuppofed to fet up as an excufe for them; Ei quis ehrijiianorum ignorat Principem Walliae^ regh AnglicB effe Vajfalulumf Thefe inflruments contain fuch a lively pidture of the dependance of the prin* cipality of Wales upon the Crown of Eng- land according to the feudal cudorns then in ufc 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- r:; . .1; i.1; \V,r. FRENCHMAN. I ihall be extremely glad to read them, or rather to hear you read them to me j and that at this very time, that we are examining the queftion, whether Wales was or was not a O 2 fief f > ■i ■ m i!ii| 'i- 'S^^^'li -}-m-^,. ' *■ m m N > i,';r> 11 '.!■> <\ ' .kmi i?M fipf of die Grpwii qlj.J^pgl^i^df be/tyrc the. reign of Edward J, ;Fpij | amnow ger^ly, at kifure, fpdipy curiplky isawakeof^i/'wpon the: ful?jp(a : a<?d: I fi;jppo%y,9^\^ hay)e,t^e ii^If . at hand» as ypu feeip tq ^^^ Jsecn , li?ttpl^. f cp|- leding tho^jj^liifa^is, ,fr9fl3,;if whjc/ii yp^, jjijiy^ been juft np5v.B.a^iii^,t;o{^?[ii> .t}ip,coi^j^fe ourconyqrfetipp. ;;I.^{}^V^fq^ bf>g y/p|yL yy9fjW^' read n>e >h«if(^ inftrume^^! VYJtl^pn j %jj;ier j p^ remony, if, it ; dqq§,.. JJiptsgi v^,. .ypi^ i;99 i^c)^ troobknu'Kor my^par^ I.a^Jqd^ou^ of hearing tU^em^tJiJ^^ l.a'f?^\;^ure, I {haljr not finely ^^fli;q ^r;» -Jo rr::.n;!:.,:,;;i.rn '^. -/Ilia vo/il ;^ . ' ', * ■• ' . The keejinefs of y^q/ ^vf^iofity jma^^s. ma thank iti no Itrftubje^art al}fi;q.r^^^.thiera. Qver tp, you» notwitihSiainding I; h4\f5^.fo,.Iatj;ly ^ead, them by myfclf. For fociety in the, jp,i^^,(tii^ "li^"-'' of knowledge, as in every other occupation, doubles the pl^alure th^ft 'arfics frdm it, and lelTcns P!yr. ,fei,ifp of th9|.j^ur> ^,yje:;beftpw upon it. , Aj><^ you rigbftjy ^ qpnjedture ^tfi^tl, hav.e the book, at h^nd^ and have lately been making the abovementioned e;ctrads f^-pm it^ V.tl - O I will I will I^ill therefor^ immediately, (etch it from tb^, tii.eiCe inftrumcnts .ip.. vqi^ \yitl3!:H^t furthpc. dol^., p^t yQn..tTa\}^XQ)^^ Q^i:.q, not to gapa vybijj^ I am;jea/ili^g 'them, "vyl^ich p.erhap y^Q^i^' *^^X AflJ^ywrfelf .^^clined tp do, as I beliey^ tbp5? -aff^ longer tlw^ou pp^h^p^ imaging.. . ^ Nqver iear frw;. . r,v, My ciirbfily'^iil prevent tiiafc\\Wjd^ bcfi^es, l^m bound in bonaurta bear tbosa oul^patieiiklly^ . after leaving prefSedy y.Qu,ra e^rn^ly^iatiake tbe troubleNi^f readin^v ':\V:\^•^C^■\ *v'/.-.\\ '•^. ' y V .\ vv.\ E:.N G:i;iI&:H'M%Ny 1 A- WelL berets the book .that contains, thfife trume ■•'■■-* -'•^■' covenant bet;we;epj:w9 parties, ,to ^witj Henry thejljirdL kj^n^'pf England, 6n the one hapd It-* » \ frj > A deed of co- ,, . , ., ....... ...-^ , . - ^. ......,-.. . ..,- venant be- mltrumentSL. The fir ft of thenb ,is a deed o£ tween king 4 _..■. -..i \.',> > ' > .'^vv .»r.\ i. .\^-. ..... ,ci.i. . » -^ Hen. III. and Senena, the wife of Grif- fin, prince of Wales, for the releaf;; of Griffin from the imprilbn. mcnt in which he was de- ^ tained by his Griffin, brother .avid. andjSenena,, the.wife.of prinde Grim^ .eidell fon ^"'bf Lewelliii, the late prince of. North w^ales^ ,then,a prifopQ^^ his brother :.\'.- i\ ' S> ' \ 'M af^ing in th? behalf of her laid hufband ^ - \V.1\ i ,|1 i ft .''\ ■< It- i'^i-:,iU j^r. !«^': I I ^0 b-il L •"■' 7''".'r:v I • I it'll I H. ill >• : c ' ' -' •.■11/ •'1 • '(H 'J,-' j , r ',7 ;.( ;• f 102 ] - . • • • ». ^ , . - ^ Griffin, on the other hand. It is in thcfc words. Cofjvenit inter' dominum Henricum tertiunty Regem Anglorum Ukftremy ex und parte y et Senenattty uxorem Griffiniy (filii LeO" Hniy quondam Principis Nsrthwallia) quern David Jrater ejus tenet carceri mancipatum^ cum Owenio Jilio fuoy nomine ejufdem Griffini^ ex altera : Scilicet y quod pradidla Senena manu cepit pro prcedi^lo GriffinOy via fuo^ quod dabit domino Regi Jexcentas marcaSy ut dominus Rex mm & pnediSlum Oweniumyfiliumfuumy Jihe^ rarifaciat a car cere pradiSlo ; it a quod Habits judicio curia fua, fi de Jure dehat carceYede^ tineri, Et ut dominus Rexpoliea judicium ^ curia face y fecundtim legem Wallenfiumy £i\^ baredibus fuis habere faciaty fapcr portione qua eum contingit de barediiate qua fuit pra- didli Leoliniypatrisfuiy & juam pradi^us , D/z* viddefdrciat ipfi Grijino.. Item quod, fi "idem, GriffiniiSy vel baredes faiy perconfiderationein curia domini Regis recuperent portionepiyquam ' fe dicunt contingere de bareditate pradidld^ Eadem Senena manu cepit pro pradiSlc Griffino^ virOy ^ baredibus fiiisy quod ipfe & b^redesjui in perpetuum inde reddent domino Kegi tr'ecehtas marca^ annuas j Jcilicet terttam partem in de- * ■ nnriis^ iem If { f°3 ] nariiSf ^ tertiam partem in bobui («? vaccts:^ & tertiam par tern in equis,per aftimationem le- galium bominum^ liber andum Ficecomiti Salo^ pejburia &per manus ipftus Vicecomitis adScac- carium domini Regis defer endum^ & ibidem li- berandum : Scilicet unam medietatem ad fejlum fan^i Michaelis^ & alteram ad Paf- cham, Eadem etiam Senena, fro pr^Jato GriJinOi *uiro fuo, G? haredibus fuis manu ce^ pit, quod Jirmam pacem tenebimt cumprafato David, /ratrefuOt fuper portione qiu eidem David remanebit de b^reditate pradiSld, Manucepit etiam eadem Senena pro diSfo Griffino, viro fuo, & b^redibus fuis, quod ft aliquis fVallenfts aliquo tempore domino Regi, vel b<eredibus fuis, rebellis fuerit, pr^fatus Griffinus& b^redesfui,ad cujium fuum pro- prium, ipfum compellent ad fatisfaciendiim domino Regi & b<eredibu5 fuis, Et de his om- nibus fupradidiis fir miter ohfervandis, di^a Senena dabit domino Regi David & Rotherum, flios fuQs, obftdes : ita tamcn, quod ft de pra^ fato GriJino,viro fuo, & Qwenio filio fuo, qui cum eo eji in carcere, hutnanitiis contingaf ante quam inde liberentur, alter pr^ediSlorum filiorum eidem Senen^ reddetur, reliquo obfde remanents ' I' 1 { io4 ] . remancfiite-: Juravit in][upf-' eilideyfi SefreW^ taBh facrofitf^Stis Euan^eUtX pH fe &' pfd frd'fato Gfijin'o, viro fuo\ ^'h^rrdibU} Jiiii^ quid hcsc omnia flrmiferUfiNaVunt, Etm-^ nucepit^^uM didius Griffirius^ 'niir fuus^ idefii jnrabit ciiffih cdran libit atUi fumt. Et 'fuperpramffirfi'fu1imiJii;)iM^ Vtri fui, furifdiBkhi^ihWahiliUm fdtfUin Herefordenfts & Lichefeldenfts Epifcopof^rfii It a qubdpirafciti Epifcopi^ vel eoruni alier;~ quern dominus Rex elegerit^ ad requifitionem ipjiu$ domifii Regis, per feriteniias exCOfnmU' nicationis in peffonas, & infer di5li in Urras^ eos coerce ant ad pr^diBa omnia ^ ftngula ^bferijanda, H^fc omnia manuceplt pradi£fd Senena & bond Jide promifit fefaSfufartt & curaturam quid omnia impleantur : Gf quid pnefatus Griffinus *vir Jiius, cum liberafus Juerity & h^redes fui, h^c omnia grata babe- bunt, & compkbunty & injl'rumentum JUum inde dabunt dofnino Regi infcriiidpr^diBd. Ad majorcm fiquidem hujus rei fecuritatem, fadium eft hoc fcriptum inter ip[um dominum Regem & diBam Senenam iidinitte pr<£fati Griffmii virifui : it a quod parti remancfiti pe-^ nes ipfum dojninuni Regem appofitum ejl ftgil- ' ' ' lum lum prafati Griffini^ per mmum diSla Senena uxoris fua, und cumjigilh pradiSla Senena ; G? parti remanenii penes ipfam Senenam, nomine prcefati Griffini viH fui, appofitum eft Jigillurk domini Regis: quhd de fupradiSlis etiam omni^ bus cofnpkndis, & firmiter obfervandts^ dedit pr^didla Senena^ nomine prafati Griffini^ viri fii, domino Regi plegios fuprafcriptos 5 Videli^ cett Radulphum de Mortuo man\ Walterum de Clifford^ Rogerum de Monte alto, Senefcallum Ceftria^ Mailgun filium Mailgun, Mereduc fliumRobertii Griffinumjilium Maddoc de Brun'*^ feld, Houwell^ Mereduc fratrem ejus, GriJI" num filium fFenunwen, ^i bac omnia pr4 prefatd Sehend manuceperunt, & chart as fuas ipfi domino regi fecerunt, A6ia apud Salope/bu-'^ riam die Lun^ proximd ante Ajfumptionem beata Maria virginis. Anno regni regis ipjius vigejimo quinto. The next inftrument recited by Matthew Paris on this occafion, is the charter of Roger de Mont^lt^ fteward of Chefter, a great Eng* liih baron of thofe days, (who probably had pofledions in the Englilh counties bordering uppii Wales,) whereby he became a pledge, y^u li, P * or ^t '[ w6 ] or Aifcty; 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 inflruments executed to the king by all the other barons, b^h Eng- lifli and Welch, mentioned in Senena's deed of covenant above recited, as her pledges to the king for the due performance of the faid covenant, namely, Ralph Mortimer, Walter Clifford, Mailgun th^ 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 (on of Wenunwen, or Griffin ap Wenunwen j of whom all but Ralph Mortimer and Wal- ter Cliffi^rd, feem to have been powerful men of Wales. This charter of pledgefliip is in >i charter, or thefe words. Omnibus hoc fcrtptum vifkris pfedgelhip, of Rogerus de Monte altOy Senefcallus CeftrU^ fa- Roger de l^ojitalt. Intern* Sciatis quod ego me conjiitui pkghim Senena uxoris Griffini JiUi Leolini^ quondam Principis Norwalliay & manucepi pro ed ergd iominum jneum, Hmrtcum,regemAngU<* illuf- 1 r \l t 107 ] irentt qwd omnia qua cotwrntionafoit eidem domino meo nomine prafati virifui^ pro libe- ratione fud & Owenii filii fui J careers in quo David frater ejus eos detinety ^ pro por- none qua iffumGri^numcontingit debarediiate^ qua fuit pradi6li Leolini patris fui^ & quam prafatm David frater ejus ei dcforciat^ domino regi Jirmiter obfervabit. In cujus te/iimonium^ huic fcripto ftgillum meum appqfui, A5lum apud Salopesburiam die Luna anU ajjumptionem B» Maria. Anno regni iffius xxv. . The next inftrumcnt recited by Matthew Paris is a charter, or deed, of fealty, by which Mardoc ap Howell 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 faithfu) to him, and alfo recorded and confirmed a certain truce, or fufpenfion of hoflilities, which he had lately made with the above-mentioned Ralph Mortimer, with whom he had been at war. This inflrument feems to bs curious alfo in another view, by fhewing us that, in this remote age, the great barons of England did fometimes make v^av ...^ :\ ' P 2 . ^ ■ upon i '' '\ 'I \i H w I*::' ■•. 'f, . - 11 4 '.■, ■' ^ iipon each other, like little fovereigns, with- out the king's command. It is in the words LtoTfeai?; following. Sciant prafentes & fufuri, quU of a peat ggQ Merducus^fiUus Howely tablis facmfanSlis or land-hoidl juravty quod ah ijio Me in ante^ onimhus 4i^hu5 Henry III!"^ *^^^^ ^^^ ^^^ adfideUtatem domini regis Angliat^ & ferviam ei Jideliter & devoid cum omnibus virihus meis, & tsto pojfe meo^ quandBcunque indiguerit Jervitio meo j & treugam inter d$mi* numRa^hilphumdeMortmMari^me initam, ufque ad peftum j(u0i MichaiHsy anmregm regis Henrici vigefimo quinto, ex parte med fideliter ebjervabo : ^ tarn ad fidelitatem dO" mi no regi in perpeitmnt ohfervandam^ quam ad treugas pradiBas obfervandas ufque ad termi- tmm predidtum, fuppcfui me jurifdiBittni domi^ fti Herefordenfis epifapi, & domini Coventren^ fis & Litcbfeldenfts epifcopi^ veialterius eorum, quern dominus rex ad hoc elegerity utfi in aliqua contr^pradiBcim jideHtatem domini regisy *oel contra objervantiam prcediBarumtreugarumy venerOy liceat eis^ ve^eorum alteri, quern do^ minus rex ad hoc elegerity perfonam ineam & emnes meos excommunicarCy & terram meam interdicercy donee de t^'anfgreffione ipfd fatisfe- $ero ad plenum. Etfiforfitan infrh pradiSlum fejium '. \.i::. * \-'>r '.-■■' *'f %*- * tff tquo vel [ Jog ] fefium S. Micbaelisy inter pradtdium Ra^ duifbum de Mortuo Mori & me nulla pax fuerit reformatay lick paft fefium ilfud helium mwiam pradi^o Radulpho^ non cbligabit mk fraM^um jur amentum^ dum tamen erga do^ minum regem fidelitatem shfervem c&ntinuam^ ficut pradiSium eft. Et fi heMm pofi pr^e^ di&um terminum inter ms fMijeatur^ nikilo^ miniis dominus rex fufiinebi^y quod egd & mei receptemur in terra fud^Jicut alii Jideki fui. jfid pr^diBa autem obfer^anda domino regi & baredibus fuisy obligo me per jura^ inentum pr^di^umy & per JgilH mei apfifi^ tionemy quodhuic fcriptQ appofui^admi^rem eonfirmationem pradiSiorum. A3um in crufi' tino aJfu$nptionis heata Maria^ ^mno regnl regis Henrici vigeftmo quint o* oU- ■'■ ' lUThe hidorian then te)Is us that th^ follow*^ ihg Welch barons, to wit, Owen ^p Howeli Mailgun ap Mailgun, Mereduc ap Mereduc, Howel ap Cadwaithlen, and Cadwalthlcn ap Howel, executed charters of fealty to th« king of the fame tenour with the fore* going. -u^-^iv VA,"-. ■J- tj. ■ ^ .. , ■ - V. 'l -. "4 ■-|; «*» ■*- The 11 /•• ■ y:r, i 1 . 1. 1 { "I Sabftance of a charter, or deed, of feal- ty made by Bavid, prince of Wales, to K.Heniylll. The words of the faid charier. [ no ] The laft inftrument recited by Matthew Paris upon this occaGon is the charter of prince David, by which that prince binds himfelf to king Henry to deliver up his brother Grif- fin, then a prifoner in his cuflody, and his firother Griffin's eldeft fon, Owen, and the other perfbns then in prifon 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 refpedt to the/claim of Griffin to a part of hk father Lewellin's lands ; and to do many other things, therein mentioned, for king Henry's fatisfadion ; and, . particularly, to hold his fhare of his father Lewellin's inheri-? tance, that (hall be adjudged to him by the king's court, of king Henry tn capite 5 and that his brother Griffin (hall do the fame with refpedt to the part thereof which (hall be adjudged to him. The words of this deed, or charter, are as follows. Om ibus Cbrifti JidelibuSy ad quos prafentes liter '^ pervenerinf, Davidyjilius Leolinli falutem^ Sciatis quod concejji domino meoy Henrico, regi Anglia //- lujlriyjllio domini Johannis regis : quoitdeli* berabo Grijinum Jratrem meum^ quern teneo incarceratum. incarceratum, una cum Jilio fuo primogeriifol & aliis, qui oca^one pradiSii Griffini furtt in parte med incarcerati, & ipfos eidem dth^ mino meo regi tradam. Et pofied ftabo Juri in eurid ipjius domini regis^ tdm fuper ea^ utrum idem Griffinm deheat teneri captus, quam fuper portione terra^ qua fuit pradiBi Leolini pair is meiy ft qua ipfum Griffinurti contingere deheat fecundum confuetudinem Wallenfium^ it a qitbdpax fervetur inter me & pradiSium Griffinum fratrem meum^ \et\ quod caveatur de ipfd tenendd fecundum conftdera" tionem curia if Jtus domini regis : & quhd tarn ego qu^m pradiStus Griffinus portiones noftras^ quanos contingent de pradiSiis terris^ tenebi^ mus in capite de pradiBo domino rege. Et quod redd am Rogero de Monte alto, femfcallo Cejlri^f, t err am Juam de Muhant cum perti^ nentiis : & fthi & aliis haronibus ^Jidelibus domini regis, feifinas terrarum fuarum, occu^ patarum d tempore belli orti inter ipfum dominum Johannem^ regem, & pradi&um Leolinum, patrem meum : falvo jure proprie* tatis cujujlibet pa6ti & infirumenti, fuper qu9^ Jiabitur luri hinc\ inde, in curia ipfius domini regis, Et quod reddam ipfi domino regi • ■ * omncs i- 1 t 112 ] mnet itxpenfasy ^uas ipfe 6f fui feeerunt €cciifion9 exercitus ifiius, Et quid fattifa" darn de damnis& iiyuriisilktis /tbi &fuis, fi€undum cofifidtrationem curUpnediSta^ vel fnale/oBores ipfos ipfi deiHino rigi reddan^. Et quodjimiliter d§mino regi reddam omnia homagia, qua dominus yohannesi reXy pater fuus^ babuitf & qua dominus rex dejure ba^ Sere [debet: & /pecialiter omnium nobilium Walienfium. Et quod idefn dominus rex non ^imittet aliquem de fuis captivis, quin ipfi domino regi (^ fuis remaneant feifina fua^ Et quid terra de Englefmere^ cum pertinen^ tiisfuisy inperpetuum remanebit domino regi ©* haredibus fuis% Et quod de catero non recepiabo vtiagbs njel foris banniatos ipfius iomini regis^ veibaronUmfuorumd^marchia^ in terra med^ nee permittam receptari. Et de omnibus articulis fupradiSlis^ & fmgulisi Jirmiter & in perpetuum obfervandisi domino rfgi & bat'edibus fiiis^ pro me Gf bteredibus meiSf cavebo per ob fides ^ pignora^ & aliis tnddisy quibus dominus rex dicere voluerit & diSfare, Et in bis ^ in omnibus aliis Jabo ^okntati & fnandatis ip/ms domini regis, & luriparebo oninibus in €uridfud. In cujus. ;■.:■. v;.^ ret [ 1^3 ] ret tefitmonium frtefenti fcriptofigUlum meiim appendi, ABum apud Alnet. jiixta Jluvtum Ehey de fan£lo Afapho^ in feflo decollatioms S, Johannis BaptiJIce^ anno prcdltli domini regis Henrici 'vigejimo guinio» Et fciendum^ quod illi qui capti detinentur cum pradiSio GriffinOy eodem modo tradentur domino Regi^ donee per curiam fuam confideratum fuerity utruniy & quomodoy deheant ddiherari. Et ad omnia fir miter tenenda, ego David juravi Juper crucem fandlam, quam coram me feci deportari, Venerabilis etiam pater Howelus epifcopus de fanSio Afapho, ad petitionem me- amy firmiter promifity in ordine JuOy quod hac omnia prcedidia faciet & procurabity mo^ dis quibus poterity obfervari, Edenevet Jiqui- dem Wangany perpraceptum meuWy ilhid idem jw'avit Juper crucem pradi5iam. A5lum ut Jupra, F rat ere a cone ejji pro me & h^vrcdibus meisy quod Ji ego 'velb^redes mei contra pacein domini regis vel b^redum fuorum, vcl contri\ articulos pr/edi£loSy aliquid attentavsrimiiSy tota hareditas noftra domino regi & b^nredi" busfuis incurratur, De quibus ojnnibus & fmgulisy fuppofui me & ha^rcdes mecs jurif- diBioni arcbiepifcopi CantuarienfiSy & epif- v, \ i Vot. II. Q^ coporwn [ IH ] CDporum LondinenftSy HerefordenfiSt & Co venfrenftSy gut pro tempore praerunty quod omneSy *vel unus eoruniy quern dominus rex ad hoc elegerity pojpt nos eiicommunicarey & t err am noftram inter dicer ey ft aliquid contra pradiSia attenta'verimm, Et procuraviy quhd epifcopi de Bangor y & de fanSfo AJaphy chartas fuas domino regi fecerunty per quas concejferunty quod omnes fententiaSy tam ex^ communicationis quam interdiSiiy a pra- di^is archiepifcopOy epifcopisy vel aliquo eorumy ferendaSy ad mandatum eorum exe- ^ quentur. ^-stv* FRENCHMAN. Conclufions I am much obliged to you for reading thefe drawn from , i i i i the foregoing charters to me, and have been greatly cnter- charttrs, tained by theih. They feem 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 itfelf; or, at lead, that ihofe 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 (hall pay a yearly rent, or ac- . . knowledgement, to king Henry and his fuc- ceflbrs, [ "5 1 ceflbrs, of the value of 300 m&rks per annum, for his portion of his father LeweIIin*s lands, hefides engaging that he fhall, at his own expence, compel any of the Welch, who fhall at any time rebel againft the king, to return to his obedience and make the king full fatisfadion. And David, (whofe charter of fidelity fcems to be more important than the other, becaufe David was at that time in pofTeflion of the govern- ment of Wales, and was permitted by king Henry to continue fo in confequence of his performing the things ftipulated in that char-* ter,) fpeaks of king Henry as being his Lordy [domino meo Henrico^ regi j^nglia,] and pro- mifes to abide the judgement of the king's court, both concerning the juftice of his im- prifbnment of his brother Griffin, and con- cerning the claim of Griffin to a part of hia father Lewellin's lands, and that both he and Griffin fhall hold their lands of Henry in capite. 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 0^2 > J-.- . ' ».ij. of \ ■ Wales war. not a fingle iief holdcn of the crown of England by the prince of Wales, but an aiTemblage of iiefs holdcn feverally of the crown of England by the princes and other great barons, or land-hold- ers, of the country. [ u6 ] of all the nobles of Wales. [Et quodftmi- liter domino regi reddam omnia homiigia qua dominus Johannes rex, pater fuus, habuit, ei qua dominus rex de jure habere debet, et^ fpe- cialiter, omnium mbilium Waller\fium^ No- thing can be a clearer proof than thefe words, that Wales was at the time of this charter in a (late of feudal fubje(5tion to the crown of England. But, I think, they feem alfo to fhew that it was not a lingle fief of the crown, held of the kings of England by the princes of Wales alone, (as Normandy had* been held of the crown of France by the dukes of Normandy alone,) but rather that it was an aflcmblage of fiefs of the crown of England, held feverally by all the nobles of the country as well as by the princes of it. For the nobles of Wales do not appear to have held their lands 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 the words ufed in the fecond inflrument you read to me, to wit, the charter of alle- giance, or fealty, of the Welch nobleman named Merduc ap Howel, which are as fol- .: lows 5 [ 1^7 1 lows ; Ju'dvi, quod omnibm dlehm vita mece cro adfidditatcm domini regis Anglice^ et jer- viam ei jidelitcr et devotd cum omnihui viribus meis et toto fojje fneo, quandocunque indigue- rit Jernjitio meo, • ^ 1 •>r >r- / ENGLISHMAN. Your remark feems very juft. It does in- deed appear from thefe inftruments, that Wales was not a (ingle fief of the crown of England, but an afTemblage of fiefs, the fe- veral nobles, or great land-holders, of the country, all holding their lands immediately of the crown, ^nd doing, or owing, homage - for them to the king. And, as to the go- A conjeflure vcrnment of it, it feems probable from feveral thrgo"vefn. paflages in the faid Matthew Paris's hiftory, "jentofWaiea ^ , ' about the year that the kings of England permitted them at 1241. this time to eled: their own governours, whom they called princes, and to make ufe of their own laws and cuftoms, fo far as was con- fident with their allegiance to the crown of England, and with the obligation they lay under, in confequence of that allegiance, to fubmit to the judgement of the king's great court in fuch cafes as fliould be brought be- fore ''X% 'I'd. I I i" [ n8 ] fore it, as for inftancc, in difputcs 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 connexion with the crown of England than the condition of a country holden of the fame crown as a (ingle 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 fb connedted. Wales therefore was at this time more diftant from the ftate of a country that was totally independant of the crown cff England, (which was the ftate in which Lord Mansfield feems to have fuppofed it to be before the conqucft of it by king Ed- ward the I ft;) than it would have been if '■'-■"'■ ./>• ^ ■ ■ • \ ':■_ ■ ' ."'^' ^ it r "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 refpedt to conquered countries. No argument can be drawn froui the cafe of Wales with refpect to the power of the Crown over conquered counuics. But, pray, fince we have gone fo far into the hiftory of the dependance of Wales on England, let me know ivhat Matthew Paris and the other old hiflorians 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 theaforefaid charter of prince David was executed, and during the ten or eleven firft years of the reign of king Edward the ifl, and before his final reduc- tion of the country and paffing the Statutum WallU^ which, I think you faid, was in the year 1284. Did either king Henry or king i. ,; Edward, Of the politi- cal conditioa ofVVrtlesfrom the year 124.1 to the final re- dud ion of it byK Kdw.I. in the yejir 1284. ' 1 t "•J , J • i 'f. '^ f X >20 ] 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 ? 1 •» . ' < I s n ENGLISHMAN. Far from it. The connedion between Wales and the crown of England was rather ftraightened than relaxed during this period, as you will judge from the fhort fumrnary of the hiftory of it which I will now endea- vour to relate to you. After tlie 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 priibner all that time in the Tower of London) at liberty, and encourage him to lay claim to the government of Wales, But t • >'lf ( "' ) But* he was delivered from this apprehenfion Death of in the month of March in the year i 2 a.^^ v/dc "prince. by the death of Griffin, who, growing impa- [^L^^Jo^^f' lient of his confinement, was killed in en* March, 1244, deavouring to make his efcape from the Tower. The manner of his death was this. He tore into long flips the fhcets and table- cloths and tapeflry of his apartments, and fewed, or faflened, them together fb as to inake a long ftrihg, by which he hoped he (kould be able to let himlelf down from one o^.the windows of his apartment and fb ttiflike his efcape. And he accordingly at- ten^ted it. But, the firing proving to be too fhort to reach the ground, he hung for fome time in the air at the end of the firing at a confklerable height from the ground ; and at4a(l, the ftring breaking with his weight, lie lell down dirough that remaining fpace upon the ground, and broke his neck. King Henry, when he heard of it, was angry wkh the perfisiYs^who had the cuftody of tiitttf, for their negligence in not preventing him from making fuch an attempt, and ordered his elded fbn, Owen, who had been kept a prifoner with him in the Tower, to be -.5. Vol. II. . R guardei M; •'(.,»' .'iO oirij 4-? -U Prince David prevails with the Pope. '10 abfolve him frnm his alle- g'ance to K. enry. J^.D. 1244. Priace David 3nd the Welchmen jcbel againft Jking Henry, ;and make in- curilons into England. ^.p. 1244. [ 122 ] guarded with greater care. But the deslth of this prince Griffin feemsin the event to have been a misfortune to king Henry. For Very feon after it we find his brother David cabals ling with the Pope to fhake ofF his obsdiencb to the king, and become* a vafTal, or tenatil, of the Pope, and ipayf him a rent of fiie hundred marks per amum for.the Jandsuhe held in Wales^ if the Pppe jwould abfdve him from : his oaith of alkgiance '. to Uing Henry, which hb pretended had beeriuex^ torted from hinv by violence : and therBo'^ agreed to the propofal, to die great andijuft indignation (Of our honeft hiftotian, Mattbsw PariS.;^; uiiuii ::iii tiJi..*JUiji>^J i.j,.j,:. wi iJUUl • Upon this agrefimenlilwith Ihd Pot)e, iwhich was in the year 1244, pi^ince David aifdlhe Welchmen openly took arnM againft king Henry and invaded the adjoining counties of England ; and, by the negligence ahd inac- tivity of the king, they met with confiderablc fuccefs. The war, or rather rebellion, con^ tinned through the year 1 245 and to the year ,1246, but with great lo^es and misfortunes tp the Welch as well as the Englifh ; ^ and in ;V»i! [ 123 ] tlie fpring of the year 1 246 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 Con 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 1 24 1, 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 fori 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 di fad vantage of the Welch and de vaca- tion of their country, infomuch that fome of the Welch biffiops fled into England to beg a charitable fubfiftence from fome of the rich religious houfes there, the lands of their . i. R 2 blflioprick§ ■ ; .. . ^. A •7r -^- .,..'• '■'.'■ „ ; >{ Upon the gr<.ac dc/arta- tion of Wales in jthe courfe of the rebel- lion, ibme of the Welch bi- Ihopsiled into Eopjland lor ^ fubfiflen^.. 1 i<i ( I 11: a '.\! '14 A- r i .]' \>*, u. InA.D 1250 the Welch are intirely redu- ced to the o- bedience of king Henry. The king ap- pointijohode Grey, anEng* liih baron, for their govern - Our» in confl- deration of a yeaily rent of 3^3 pounds ikrling. And foon af- ter appoints another Eng- Ii(h baron, namMAIande Zouch,gover- nourof Wales in the room of Johndw'Grey, in confidera- tionofa yearly rent of 733 pounds fieri. ■III I "4 1 bidiopricks being kid wade and rendered of no value to them. At lail in the year 1 250, that is, four years after the death of prince David, and fix years 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 Englifh law amongfl them, and an Englifli baron for their govemour, 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 (hort time after he removed this John de Grey from the government, and gave it to another Englifh baron, named jilan 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 fterling a year. This was the cafe with that part of Wales which was ad- joining to Cheihire. It does not appear that the more remote and interioUr parts of Wales W?re yet reduced to this condition. rH O ,1 This of nee lent :oa-' I I2S ] . This ^an de Zouch had the title of "jufli- tiarim Wallia^ or Juftitiary of Wales, or thofe parts of Wales which were adjoining to Chefhire. And Matthew Paris fays that iii the jrear 1252, he brought a confiderable quantity of cnoney from thence, of the king's revenue, in carts, to die Exchequer in Lon- don, and that he there publickly declared on that occation, quM tota Wallia obedient^ et in pace kgibt^s fubjacet Anglicanis^ that all Wales was reduced to the king's obedience, fmxl'had quietly fubmitted to theEngliih law. And the biihop of Bangor, who had retired to the abbey of Saint Albao's, faid the fame thing. At this time therefore Wales was more than a fief, of the crown of England j it wa& a part of the realm of England in the adlual pofTcflion of the king, wfe^i The title of AlandeZouch was 'Juftiua' riuslValluctOt Juftitiary of , Wales. i^f'Dl.Pai ""lri''i -dttji^i/; "V 1''! ■ Jl <'\. 1,"V 1 .i!7,-r. !■ .««. ''^^ ilh the year 1254 king Henry the 3d gave Wales, Gafcony, Ireland, Briftol, Stamford, and Graham, to his elded fon prince Edward, who was afterwards king Edward the ift, bpt who was at that time a boy of fiitcen years of age, and whom .he had juft then marrk4 to Eljcanor, the fitter of Alphonfo, King Henry makesadona- tion of Wales and Ireland, and fcvenil other domi- nions, to his fon Prince Ed- ward upon his marriage. A. D. 1254. v.rj::..: one New difturb- ances arife in Wales in con- sequence of the oppref. fions of one Godfrey de Langley,their governour. They will not acknowledge I*r. Edward for cheir lord. i; viiv^4- bo v; ■ A 1 « >.. • - one of the kings of Spain, By this dona- tion, I concaive, Wales for /the firft time became a ^ngk fief of the crown of Eng- land, having before the l^tc rebellion been (as we before obferved) an allemblage of fiefs holden of the Crotwn by the feve'cai great laiid^^holders, or Inobles, amongil whom it was divided, who all did homage to the kings of England for the .lands they re- ipedively poiicfTed^: Vv>^^^^i!^\ >-^viv^A -yiiy^ tS The peate of Wales was foon after . dir fturbed by the oppreffions of one Godfrey de Langlqrv whom the king had fet over them as their governour, or juftifiary^ and who feems to have been continued lia that office after tht 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 thelbove 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 fovereignty over them to his fon -i.j. without I na- ime ng- •een ; of re'cal liom ).thie rre- wUhout their cowfentV -and they ^Vere mt dirpofed^ to icohrene • t^ . have P^irtte^E^dwird fot^thek lofdonJaOGouttt'of tlYe eMtpeam itvi TdleiH^aitil injuAi^^^^i^l)! which' Kc' arid h^s rtihole i :houflliC*di ' )by fci^' dxaM^e' ^S^d" pei-J miflioiii treated ever)? one they-hidiiWy'Con- otm ^kh. ^For ifucJi-'^ere the ^ impromiftng bttgmiiwigs ^f ' ^"priftce Ed ward's' cottdudt, thowghf^he •ftfieilKi^i'dS proved i gr^at and piludpnr kiiig. "'-"^h^jWelclii howevdr, were bot terrified b^^ his ?haughtine(6,^'b(it' boldly madie'-warupoiV/«^ii»f^ about thi^^tifiie,; snd ^enettHteda^fat^fts^hefter Iti thi^ h^^t^fidtis dix theBflgliifll' tew-il«ry, laylhgiM^h^itounti^ wafte bsthey pa(fed -through it. -^^sbr Wa$ |)rnK:e Edward/^ the> king his father, at this ticntt^abk ftor<i(iifc 'thenrf, the king's" tr^afures h«^ng been lanily^^^hauifted by "«3t^dces in fwwignpai-tsi'atid tHd"Engii{h' halkm'' being highly: difcohtented' With the repeated' ^ds of bppreffion committed by thekihgf and the difgufting b^baviouf of his- fon Edward, (b ;is to be unwilling tb^affift^hem iri'Jepulfing thetWidch, and- not ferry to fee' thiem in- volved in difficulties which might t^nd to reprefs thcit tyranfty. Thefe things hap- ' > pened Pr.Edtrafdlft thi» early part great icfo- loncc and in- juiUce. fiohs iiUoiZng- ian^jan'j meet wifii l)'ut little rcliftancc. A.D. 1256. The Englifli natipn arc dlf- fati&Hed with the behav;ovir of both king Henry and his fon. Prince Edward. ■ / fiji '(II t K ' m The VMkh nifc two very powcrftil tr-i xnics. j^vr.!! -;i4 nn^: jk >( Pr. Edward threatens to bring over an army from Ireland to re- duce theou The Welch provide (hip- ping to pre- vent fuch an invafion from Ireland' .1 f*8 1 penedm the years 1256 ajid 12J7, in which latter ytar tbe revolt of the Welch fbeim to have been very general^ as they are lejfiorted to have raifed two armies agaiaA thi».£fk^i(h of no lefs than thkty ^uiaind m(d[n^>^h| of whom five hundred men in each iririny were horfemen cloatbod in elegant; jarnH>iir, and mounted on horfes which were covefed aU over with iron. Plrince Edward/ betag unable to refift this foroe with the troops be had then iat his commt^nd ii^ EngUndg and being unable to procure! any affiftaooeftom his fiithcr Ibr the reafoiu above-mentnmed, threatened tO: bring over an, ^f my from Ireland, (which the king had made over to him as well as Wiles ,) to reduce the Welch to jobe- dience, threatening to lifeak themiQ|>kQes like a potter's veiTel. Qui this invafion they endeavoured to prevent by building a number of galliesy and fitting them out for the fea with arms and viduaU» ia oppofe any {uch Iri(h forces in their pafiage on the fea from Ireland to the coad of Wales. Thefe efibrts for their defence at diis time were attended with fuccefs under the command of the prince they had chofen to command them, whole C ^29 ] whofe name was Lewellin,- and Vv'ho was one of th$ fgns of the late prince Qritiip who had died in confinement in the Tower of London. And Matthew Paris (who had oiamed them before for rebelling againft king, Henry in the year i244< upfder their foi-fper prince p4vidi as beipgr . guilty of perfidy and in- juftice againft the ki^ng) commands them for their prefent infurriedtion, as. being jullly warranted in taking ^TOs by the. oppreflions they had fuffered from Godfrey de Langley^ the juftitiary whpm the king had fet over them; and fays that their caufe was allowed to he a juft one even by their eaemies* This honcft hiftoriap (who feen^s to have had no notion of the do^rinps of paffi ye obedience, and Don-refiftancei,) laments at the fame time the ignominious tam^qfe and timidity of the Englifh nation, in fubmitting to the various oppreflions the king had exercikd towards them, inftead of rifing in arms like the gal- lant Welchmen, to procure the redrels of their grievances. The Welch, under the They gain a , • 1 ' . . viiStory over conimand. of their prince Lewellin, gained king Henry's a vidory in this year 1257 °^^^ ^^ army veTr^'zc"-? ^ which king Henry brought againft them ; "''VolAL S ^ ' ^^but. ii.t. , H. 4 ^m m 1^ ^ilS- I..': I ii 11 but, foon after, fue for peace upon moaerate and reafonablc terms. but, upon the king's raiiing another great army to o{>po(e 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 confilio fuorum optimatum\ fent meflengers to the king to beg for peace, but upon condition that they (hould be reftored to the enjoyment of their ov\^n laws and antient liberties, as they had enjoyed them till within a few years paft ; and that they (hould not be fubjedt 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 (b many oxen or affes. 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 ingloriouily to London. . * An inference From this propofal of prince Lewellin it from the faid 1 *it . 1 n y t « /. vropofalofthe appears that the Welch conudered themfelves Henrv'for"^ as fubjcdts of the king of England, but as fubjeds who had be.eA opprcffcd by his go- vernment. King Henry refules to make peace with th«jn. Henry fox peace t '3« ] vernm«nt, and who had been driven by fQch oppredion to the neceility of taking up arms for their defence : and the oppreflions they feem to have had in view, were, firft, the abolition of their laws and cudoms by the introdudion of the Englifh laws, which had lately been eftablifhed among them ; 2dly, the extortions of money and goods from them which had been committed by the governours, or juftitiaries, whom the king had fet over them i and, 3diy, 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 fubjedl to the king himfelf, provided he will govern them with judic^ and moderation. ^ , »; ' u- King Henry having rcjedled the propo- fition made him by prince Lewellin for a peace, the war continued, and the Welch gained confiderable advantages in it, meeting with but little refinance from the Englifli, and being fecretly encouraged by fome power- ful barons in England (of whom it was fprpe(5ted that Simon de Montfort, earl of S 2 Leiceftcr^ The war con» tinuesbetween the Welch und Englilh. The Welch are fecretly encouraged by fome pow- erful Engliih baronii Leiceftcr, was one) to continue their hodi- lities. This was the fame earl of Leicefter who became foon afterwards fo famous by heading the confederacy of the Englifti ba- rons who took arms to redrefs the tyrannical government of the king. The Englifti In the year 1258 the Englifh gained an vantage over advantage over the Welch by means of a IrcaSely^ ^^ trcachcrous attack upon them at the time A. D.I 258. they were treating about a peace. Yet the Welch defended themfelves with bravery, and killed many of their treacherous affailants. The Welch again make au offer of peace to king Henry. A»D. 1259. ,.if'^ '.-»i ' «S'. j(, •;! In the year 1259 the Welch again made king Henry an offer of peace, fearing that, when the diflenfions then prevailing in Eng- land (hould 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 5 by giving to the king him- felf the fum of four thouland marks,' or 2666 pounds flerlingj three hundred marks, or two hundred pounds, to prince Edward ; ■[ »33 J niid two hundred marks, or i66 pounds, to But the king „ 11. . •» 1 1 rt- rcicdts their the queen. But the king rejeaed the offer oifer, and the with contempt : and thereupon the Welch ^*^B°"°"- refolved to continue the war in their own defence to the beft of their abilities. ' ' , , The inteftine troubles of England, known by the name of the barons wars, began in a little time after this ; during which the king was not at leifure to profecute the war again ft the Welch j who were alfo protedled 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 flain in the important battle of Evefham, which was gained by prince Edward over Simon de Montfort and his army in the year 1265, and which ended that civil war* The civil war, called the ba- rons fjuar, breaks out in England. The Welch join the army of the barons with a large body o^ men, of whom ma- ny are flain at the battle of Evefham A. D. 1265. 'y>'.\ * , 1 In the year 1 268 king Henry, being then rid of the oppofition of his Englifh barons, marched with a powerful army into Shrop- fhire, with an intent to take an ample re- venge upon his enemies in Wales/ who had King Henry inarches into Shroplhire with a great army, to in- vade Wales. A. D. 126S. fiat, upon the fubmiflion of the Welch to his pleafurCf he grants them a pciicc on the payment of thirty ihou- fand pounds fterling. Death of K. Henry the 3d. A.D. 1272. KEdw.thcift fummons Lewellin, Pr. oi Wales, to attend his coronation and do him homage. t '34 ] fb long refided his authority, and had lately taken part with Simon de Montfort and the other confederate barons againft him. But, upon prince Lewellin's fending melTengers to treat with him of peace upon fuch terms as he thought proper to impoie, and at the in- terceflion of the Pope's legate, he granted the Welch a peace upon their paying him the very large fum of thirty thoufand pounds flerling, and reflored to prince Lewellin the poflcfTion of four diftridls 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 lafl publick tranfa(ftion relative to Wales in the reign of king Henry the 3d, who died in the month of November of the year 1 272. In the beginning of king Edward the ifts reign prince Lewellin was fummoned to 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- ment at Weftminftcr, he was again fummoned by t '35 ] by meffengers from the king to come to Wcdminder and perform his homage. But he cxcufed himfelf from his duty on this occafion upon a pretence of danger to his life» if he went into England, from the wicked defigns of fome powerful Bnglifhmen againfl him i and he therefore defired that the king's fon and Gilbert de Clare, earl of Glouceder, and Robert Burnel, the king's chancellor, (hould be put into his hands, ashodages for his fafe return to Wales, in cafe he obeyed this fummons: but did not deny that he owed king Edward homage. King Edward rejeded this requefl of the faid hodages with indignation, 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 dill ex- tant, and well known to Englifli lawyers under the name of the Statute of Weftminfter thejirft. But when the parliament was at an end, the king went to Cheder, which Is on the confines of Wales, and to which it was therefore eafy for prince Lewellin to come without any danger to his perfon from his enemies in England. And therefore he there f m jriiJBi''-l''"i3 J-ll '* m''' 1 ■t'l /I . 1 ' ' i m .'.,. ■| J' '■ m m . I'-i WW. I 1 '^M 1^ dl'- M^ %, (^WnB I-? <' ;- ! i^K i fr ' [ \ M ■^'^ c- f': f tti|HH '-\m \ » !'» Upon prince Lewellin's re- peated refuf- als to do ho- mage to king Edward for his iand in "Wales, the king raifes an flrmy in order to expel him from it. Inference therefrom. ! '36 ] there fent another fummons to Lewellin to attend him and perform his homage. But the prince ftill refufed ta obey him : upon which the king drew together an army, and refolvcd to march into Wales, and expel the prince from the fitf, or land, he held wnder himj iince he jefufed to do him hojiage for it, ^0 mandatis regiis parere dette6lante^ rex exercitum convocat, difpoHens prtncipemi fibi denegahtem homagiumy de feodo fm ex^ pugnare, Thefe are the words of Thomas of Walfingham, an old hiftorian of con-» iiderable credit. By thefe words it is plain that king Edward at this time coniidered 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 fprmer charader only. And'* we have feen hy the whole (eries of the hiiiory of the forfner reigns that, in fo doing, he ojily trodrinthe ileps of his predeceflbrs ever (ince the t^me of William the Conqueror, to moft of whom the princes, and other great land-holders, of Wales, had done homage for their lands. K ing »-'king Edward gicddrdingly'rfiide War upon l^in^e Lewellinvafnd in the cSufk bf a cbiiple 6f yeSlfs re(tefc(f him' tothti neccffilybf itiingfor ^^^y wbich^'he gritited him In the year 1 27^8 ii{)on'AefondW>figdonditions J -Wwit, I ft, That ptititl LeWdfiiii^YhoUld fet all thbfe pritbners it' libfertf wi<!hGi<t rkrifom, or demand of anv kjifi^ ^hb'wiiit<6'iri'^rifon for having affifted king Edward] Jori in a:ny mdnnci^, on account of-ihe' war \v4th' EfiglaM^/ :2d^y,''That he ^otalid pay td t^^ kihgi for his friendflii^ and' fevourv'the-^iiiiii' iof fifty 5thdtiriiTa;pbt:ihc!i a^fillig 5 ^-3%i '^TElfefc" the'^iir'-lcaritreds of feiidy ! wbkb<Jhe«h^ 'hitherto enjoyed as- hS oiw^llpawiiritnj^ ^'(J-'alfo '%li-i:11e laAds iri WdlcEi - whith ' thie ' king- and ' tSs ^army had conquered itt'ffeec^Hffetof tfiii'vViif, ffiould &rn««»er^'aftei tiilon*>' to the klrt'.; and his bars? «xcepti»i^ '^illy the ifle of Angkfcy; VvM:h the feilig'f^confented to give^to prince LcivQlIin,^ to fe'iiolden of the kiiig- dud'his hdlri' by .■ . .Clxe yeaViJ' • rent' iif^' i 'o6o' rndrks, befiritt .50ooimMffcs to "be ffdicl ~^in-i:iicd(ai"cljf ttiliavfeie 4br 'enh^ifFyr?; intcl-]5oueii[] -n cffe And, "if prinacil7<^v/d1in died tvi:hout licirs of hislbody, ttiis^iil-Uid.was to revert to the • VolAI ' T kinK, King Edward mnkes war upon Prince Lewcllinwith fuccefs . The prince fues for, and obtains, peace from the king. A.D. 1278. The condi- tions of the peace. '.•■.I'' T,.- i .G '.I .rv tjS) vi, I ; II .Sj C 138 } king, and remain in the poiTeflioii of MnJ and his heirs for ever after. 4thly, That prince Lewellin fhould attend king Edward in England at the enfuing Chriftn»& and do homage to him for th& iaid ifland of Angle-^ fey, which he was to hold of \kim, 5*hly» That all the other land-owners in Walc» fhould do homage for their lands to the l^ng, except five barons in the neighbourhood of Snowdon, the high mountain in South Wales, who (hould do homage for their lands to prince Lewellin -, becauf^ he J^d^ ke could not with propriety takeuponhim the tide of Prince, unlefs he had ibme barons under him who held their lands of him. But it was agreed that the homages of thefe Bvt barons (hould be feparated from the crown of England only during the life of prince Lewellin^ and after his death (hould be ^lade to the king of England and his heirs. 6thly, That he (hould give ten hoftages for the performance of thefe articles. 7thly, That the great men of Wales fhould bind them- felves by an oath to compel prince Lewellin to obferve thefe articles, and to make war upon him for the king of England, if ever • l^ ■- .he . [ 139 1 lie (hould break them, and, after being re- iquired by them to redrefs the breaches he ihould have made of them, fhould refufe or negledt to do fo. Sthly, That he fhould be reconciled to his brothers, whom he had treated with feverity. Thefe were Owen, his eldeil brother, (the eldefl Ton 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, eicaped frpm thence, and had after- wards been apprci!i£nded 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 againfl Lewellin, and had dope the king fuch acceptable fervice in it by his valour and activity, that the king thought fit to reward him by a grant of the caflle 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 lofl her former iiuiband. T? In r David, brOf ther to prince Lewellin, having ferved king Edward in the late war agairft his brother Lew- ellin, is re- warded by the king with a crantof Dcn> bighcaltie and a marriage with an Engp lifli lady of diftiadUon. "i ' l<l Owen and Roderickjtwo other brothers of Lewellin, v^ ho had been kept in prii'on byhim,arefet at liberty. Pr. Lewellin himfelf, with the king's confent, mar- ries a daugh- ter of Simon dc Montfort, the late carl of Leiceller. . f '40 i I t In confequence of this fjacificatlon (wfcich was made jn the year 1278) prince Oweiji and prince Rodciick were let at liberty l?y their brother Lewellin J aiui Lewellin . mar-r ried, with king Edward's confent, a daught??r of Simon de Montlurt, the late earl of Leicefler, to whc^m Ihe had bieen betro^he4 in her fathers lile-time during the allknce between the faid earl and Lewellin in the time of the barons war : and the king ^ncj queen of England were prefent at the Frcfh troubles break out in VV?1es A.D. 1282. rn^- f. .., ■J >:i' • /' ■ •« t.U' it >«!'!•■> •' ''"■ HoftiUties are begun againf!; theEnglilhby prince David in a treache- reus manner. This peace continueciWio be ohferved for about four years, when ffem troubles broke out in Wales by the inftigation of prince David, who, hotwithftanding the fidelity he had (licwn to king Edward in the late war, and the fj^vburs he had received from him in' return, now ungratefiilly ftirred up ,fiis brother, prince Lewellin,^ and ,the reft of tne great men oF Wales, to begin a new rebels lion againu king Edward. The hoftilities were begun by David himfelf, as an example arid encouragement to. his countrymen, by fuddenly and trcacberpufly laying hands, on ralm- vU i. T i H' ] Palm-Sunday, on Roger d^ Cliffbrd, ati pngji/h noWcmap of great birth, and emi- nence, vvliom kii^g Edward had appointed to the office of jiiftitiary of all Wales, tan'> quam ivtiiis Wallia jufiitiarium. This great officer was made a prilbuer by prince David 5 and feme knights, who were his attendants, and who, though unarmed, endeavoured to defend him againft prince David's party, were flain in the fcuffle. After this the v/ar was renewed between the Welch and Englifh a and fot fome time with various tuccefs. But at lafl the event was, that prin.ce Lcwellin was killed in a fudden attack made upon him unawares by John GifFard and Edmund de Mortimer, two eminent pngJifh barons, at a time when he was at a diftance from his niain army and had only a fmair guard to attend him; and his head vy as cut-off and fept immediately to the king, and afterwards, by the king's order, fet upon the Tow'er of London with a crow|i of ivy on it; and David was taken alive by fome of king Edward's partifans, and, by the king's order, tried as a traitor, condemned, and executed, by drawing, hanging, and ijlqmvx? quartering, :'j '- ; h y. i> Pr. Lewellin is flain in a fudden attack by two Eng- lish barons. y,.). Prince David is taicen pri- foner, and tried and put to death by king Edward as a traitor. "% i (;■ iiM ,11 !i ) I And all Wales is intirely re- duced to the king's obedi- ence. A.D. 1284. King Edward paffes the fa- mous SL&. for the regulation of Wales, called the 5/a- ttuum IVaUia, His gentle and judicious manner of proceeding on this occauon. ■yr:,,\ t t A y -it-t ii I [ 142 ] quartering, according to the law of England for the punifhment of high treafon : and all Wales, with all its (Irong places, was intirely reduced to the king's obedience, et totaWallia^ cum omnibus caftris fuis^ fuhaSla eft regia voluntatis This was in the year 1284; and in the fame year, (fays Thomas of Walfing- ham,) the king caufed the laws of England to be obfetved in Wales, and appointed fherifFs for the execution of them, that is, he made the famous flatute we have before fpoken of, which is called the Statutum Wallia, You are not, however, to under- hand by this that he inflantly abolifhed all the laws that had hitherto been obferved in Wales, and eftabiifhed the laws of England in their (lead : for he proceeded in a much gentler and more judicious manner, and^ firft, inquired from the mod; 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 £ng^ land upon thofe fubjedts in their ilead. For example j f 143 ] cjcariiple $ by the V/elch Ia^^ a ba(tard mighc fucceed;t6 his father's lands as well-as a fon born in lawRil wedlock ; and daughters could' not inherit their father's lands even when there were no fens ;^biit the landd went over to the next male relations. THefe two things king Edward changed ; excluding baftards intirely jfrom the inheritance of their father's^ lands, and adnyicting daughters to it in de-« fault of. Tons, according to the cuik>m of^' England. But he permitted theif cullbni' of inheriting lands, by e<|ual partition 'ilnlongf^r all the fons of the deceafed owner of themj^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 Englifh law of inheritance by primogeniture introduced' into Wales till 250 years after the redudtion of it by king Edward the ift, when, in order to- reiider its otiibn with England more compleat, and alfo to avoid the inconveni- ences which had been found to arlfe ftbm the too great fubdivifions of lands by repeated partitions of them upon inheritance, king Hciiry the 8th eftablifhed it in that country ' . by 4m , .^« i ¥} ,|l I ' i a ■•4 tri- ''>r; iU-^'- l."..< byai^iJfftOf the £ogJiftf/parttefrici)t,. .finch yf^ rky;^}!]^dward*9:.|eii)p(^9ale andtfh'itxkat <;piid«(Si5^p this ocqaripj|«r((TI(Kr^fo!»l,;!lMhca T^hoifpa^pf Walfingh^ral and ihe otbcr Iwritcra of the«.Wftopy of kj^giBdyv^rd the lilVrcign; fay, that lung Edward dn ' this occaHon intro- duced the. law$ of England into Wales» they Qluft be , under flood to ooean only that he in?rodpc^4^W of the. laws, of England Into if,. ^yhJ(Ai J^^ithoughtr^nofl: eflentiaJly; neticft fary.fiJrrithfeflpeacei ^nd' hlppitiefa^of dil peopl^f ^t)4 itih^t . h|3 . ^ic !the ^ whole ' adnil^ oiOra^i<^|> pf juftice; iq^his oWn hands^ {»p- ppiiHing J tip\ only a JMJIitfery of >the qpwmry^ (as his ; father, king Henry the 3d, h^d %ne before l^i^, )., but likewise (heriS in .ihe ^r veral counties, ;hy w^ofe I3iearj$ aUi.thf iexfe-^ cutive pp.wefi; of the;;cpun,try ,w?$ ^ ihls dilpolal, ,•: ;ri -jsi^n ^-j/; -^ ^r.'- -i^i^ iolj.W c)?r:: , And, ,tjius I have ,giv^a .you ^ /lijp^M^y account of; what the old Epgljife: b|ftfir{ft>ft§i, and particularly Matthew iParisji {yy^f^ )^y^ in the, reign of king Henry the 3d, j^4;diq4 in the year 1259) relate concej-nipg ^j^, )pf3iB- nediof}j between England ^pdiV^^^s^fffa^ . \ ■■•■- ■" '•'■■' -.' the I '<> •• !• > I < •^i.'. ;{ .'45 ] % the time of king William the Conqueror to the final reduction of Wales by king Edward the I ft, and the pafling of the Statuium WalUce 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 degree tedious. For it has enabled Conc!"^on ' . . refultmg from me to form a clear and poutive opinion, that the foregoing the fuppofition ** that Wales had been a fief Wales? ° of the crown of England," was not a fidion 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 the Vol. II. \} kings « ri, .k: '■'U > ill :f i\ 'I I ; '1 ', "i I Of the manner inwhichWtles Wat brought into a Hate of feudal fubjec- tion to the crown ofEng- land. t t46 1 kings of England, and ufually did do homagt for them, in all the reigns from that of the Con(}uetour to that of king Edward the ifl, (before his lad redtt^ion of them>) inclu- lively. But it feeims probable to me from this account, thait this obligation of doing homage for their lands arofe at fkft, 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 qf 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 fliould have recolleded that a feudal fubjedtion of one country to another, or rather of the pofieflbr of one country to the poileflbr of another, may as well arife after a former independency of the one on the other, by a . compadl ( H7' ) "ComiMid between the parties for that purpofr^ 36 be originally created before ?ne of the par- ties is put into podeilion ef 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 diem. 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 adts of fubmiflion of the Welch princes, and other land-holders, to the kings of England, after a prior ftate of independency on them j becaufe the Welch were the oldeft inhabitants of the ifland, and pofleffed both Wales and England before the Saxons, or Engli(h, arrived in the ifland and eredted thofe feven kingdoms in if, which, after their union under Egbert, king of the Weft Saxons, were called Eng- hnd^ or the kingdom of England* And it • ■ U a i;* m I I 1 I It t 1,(1 i \ I :i I I', t '43 r is alfo pretty certain tliat thofc ads of fub- miflion of the Welch princes, and other land-holders, to the kings of England, where- by they confentcd to do homage to them for their lands, were the effcd of their fear of the power of the kings of England. But, when thcfe a<5ts were done, (iet the motive that gave rife to them be what it would,) the country of Wales was as truly in a ftatc of feudal fubjedion 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, fird, taken podenion of it themfelves, and afterwards granted it out 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 paflages above recited from the old writers of the EngliQi hiftory, that Wales was in this condition of feudal fub- jedion to the kings of England long before the reign of Edward the ift. 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- (enl; [ H9 1 fcnt 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 rcfpcdt to the government of conquered and ceded countries. Li ii>V</ 1 It. I it4*'J ■J i iij.-iii^ n c.» But in truth the Staiutum Wallice does not Tjie 5/^/«/«m appear to have been made by king Edward s made by the Tingle authority, but by his authority and .l\iy^j\\^,r tlic with coi.cuircncc oi his burons. that of his barons, or great men, conjointly, ^j-'^^ara For we find thefe words in the pre-arnblc ihcaciviccand of it; Nos itaqtie . . . "jolcntcs pradidlam t err am mjlram Snaiidurty et alias terras noflras in fartibus ilHsyficut et cceteras ditioni nojlm fuhjcBaSy . . . fitb debito regimine gubcrnari, et incolas terrariim illarum . ,. . certis Icgibus ct Conftictudinibus jub tranquillitate et pace nojlrd, tradfari^ leges et confuetudincs partium Ulariim haBcniis iifitatas coram 'nobis et proccr ibus regnl TiOp^ri jecimiis recitari ; quibtis diligcntcr au- dit is ^ et pleniiis intellcdlis^ quafdam ip far urn, de conftUo procerum prcediBorum^ delcvimus^ qiiajdam permiftmuSy et quajdum corrcximm^ f/ etiam quafdam alias adjiciendas et Jiatucndas ^xrcvimus, et eqs d^ ccctero in tcrris nojiris w ■Ml i 4 n\ 1 41 rii ■all m 1 i ^al 5' t 150 1 jffl parttbus illis perpeiud firmitate tenert cf obfervari volumus, in formd fubfcriptd*^^ By thcfe words, coram nobis et proceribm regni mllriy and de conftlio procerum pra*' didloruniy it is plain that the proceres regni, the grear men, or barons, of the realm, concurred with king Edward in enabling this ftatute ; and thefe barons were the only parliament then in being, the knights, citi- 5sens, and burgelTes, who compofc 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 perfedlly independent of the crown of England, and now for the firft time reduced to a fubjedion to it by con(^ue(l» (as Lord Mansfield had erroneoufly con- ceived,) yet this inftance of king Edward'si legiilation would not have afforded a prece- dent in favour of the abfblute legiOativc End of the in- power of the Crown alppe over a conquered quiryconcern- * * ingihccondi- country. Awd (b we may take our leave of and the legtf- the hiftory of Wales with refpedl to the lative autho- prefect qucftion, rity cxerciied r * over it by K. ■ ' < Edw. the xft. ' ,, ,> ^ ^ r-r FRENCH- >«i i t 151 ] i '-*■,., FRENCHMAN. But I think you mentioned fbme 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 a legiflative 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 tLcm? m h I I '} . ■}'■■ . I 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 lad places, before the conqueft of them by the ^Britifh arms in the courfe of queen Ann's war, were a part of the mo- narchy Other placet mentioned bjr Ld.Mansficki as inftances of the exercife of the fole legifo lative power of the crowfi* i,l;::ii * [:m-i s;\''i&. t I?2 ] Lord Manf- narchy of Spain. Lord Mansfield's words concerning Berwick upon Tweed are thefe. " Berwick, after the conquefl: of it, was governed by charters from the Crown, till the reign of James the liT:, without inter- pofition of parliammt." concerning Berwick npon Tweed. .■ » f • r\ T t A remark up- on them. FRENCHMAN. Is that all that wss 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 ; — it would prove that the king had the power of making laws without the concurrence of parliament for •'he provinces of the Maflachufets Bay, and Connedicut, and Rhode-Ifland, and Penfylvania, to all which his predeceiTors 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 itfclf which have charters, thofe charters having all been given them, (as I have always heard,) by the kings alcne r «53 i alone without any interpofition of parliament. And yet in all thefe cafe& it is not pretended that the king alone is poffefled 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, cxtreamly inconclufive : and for the reafbn you have given. The power of giving charters has always been confidered as a part of the royal prerogative of the kings ^of 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 furprizcd as you can be, at its having been alledged on this occalion for fuch a purpofe. And, further, in the fecond Tjieprivileges r L • r 1 • T 1- n. ^f the town o? year of the reigr; or king James the ift, Berwick upon that is, in the year of our Lord 1604, or confirmer*by 171 years aeo, there was an ad of parlia- fna<^o!pa'- t J 9 ' ^ r Ijament i \ 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, yoL.n. X baiiiffi. i*- ■• w I iy- iiS w An inference therefrom. [154 1 bailiffs, and burgefles of Berwick, and of the franchifes, liberties, and cuftoms of the faid boroughr So that it appears that even that king, (who was remarkably jealous and tenacious of the prerogative of the crown,) did not conceive himfelf to be pofrefTed of a compleat legiflative authority over the people of Berwick by virtue of the conqueft of it by his predecefTors on the throne of England :, bec?».ufe, if he had conceived fo, he would not eafily have been prevailed upon to diveft himfelf of a part of that authority by exercifing it in conjundlion with the Englifh parliament. This inftance there-' fore, of Berwick upon Tweed is of very little weight with refpedl to the prefent inquiry. ^ . ^ FRENCHMAN. ^ ' of^hedutchy 'pj^g jjg^^ inftanccs you mentioned, as ofGuienne,or ^ ' Gafcony, and having been cited by Lord Mansfield in flip- the town of r 1 • 1 •/! • 1 • r ^ Calais in po^t 01 this legillative authority or the crown, i^ ranee. were, if I remember right, the town of Calais in France, and the dutchyof Guienne, or Gafcony, in the fame country. Pray, what did Lord Mansfield fay cQmQmlng thefe places ? ENG- [ ^55 1 ENGLISHMAN. His words upon thefe inftances were nearly The words of ,_., , / Ld. Mansfield as follows. " Whatever changes were made concerning in the laws of Gafcony, or Guienne, and * ^^' Calais, muft have been under the king's authority. For, if they had been made by adt of parliament, the ads would have been extant : becaufe they were conquered in the reign of king Edward the third ; and all the ./ • - - adls from that reign to the prefent time are extant. And in fome adls of parliament there are commercial regulations relative to each of the conquefts which I have named : but there are none that make any change in their conftitution and laws. ■ Yet, as to Calais, there was a great change made in their conftitution. For they were fummoned by writ to fend burgefles to the Englilh parliament. And, as this was not done by ad of parliament, it muft have been done by the fole authority of the king." This is all that Lord Mansfield fajd concern- ing Gafcony and Calais, X 2 FRENCH- ?i 1 11 m i't III {.I ( '56 ) 3i Remarks on XiOrd Manf- £tld's words. Gafcony was not acquired by the kings ot England by conquell, but by the mar- riage of king Henry the 2a V'ith Eleanor th? heirefs of it.. FRENCHMAN. It IS really very furprizing that that learned lord fhould have fpoken in this manner; fince, 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 poffefled by the kings of England as conquered countries, or by the right of war and conqueft, but by the peace- ful titles of marriage and inheritance. This is more efpecially true of Gafcony, orGuienne, For that was acquired by the marriage of Henry earl of Anjou and Poitou and duke of Normandy, (who was afterwards king of England by the title of Henry the fecond,) with Eleanor of Guienne, the heirefs of that great province, after fhe had been divorced from the king of France. And it defcended to the faid Henry's pofterity by the laid 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 Englifli loft all their pcfleffions in France of every kind, ex-» ctpt Calais and a frnall territory adjoining to it. The rigjl;it of conqueft was never thought of during ' W'_T- [ ^S7 1 1 a during all that time as the ground of the pofleflion of this province by the kings of England : for no conteft had ever arifen about it 5 but the kings of England had been always allowed to take and keep peaceable pofleflion of it by virtue of their hereditary title from the faid Eleanor. Whatever, there- fore, was done by the kings of England who pofleflTed this province, (that is, by king Henry the 2d and his fucceffors 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 dc 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 thoie 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 Gal- cony, ought not, as I conceive, to have been inentioned on. the fubjed we are now con- fidering. As ;■ ' ^■w m tf; ! >1 '^1 I ^1 '! il <i 1 i; Calais was a As to Calais indeed, it is true that it wai Edward the conquered by the arms of England in the f^rTtlZf reign of kin J Edward the 3d, as Lord Manf- and not a part £eld aflcrts. But it is alfo true, that it was of the domi- nions of the not conquered /or England, or by virtue of land!"° "^" ^^y 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 noway connedled with his pofTeflion 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 fuppofe that Edward the 2d, king of England, had married two wives j and that Ifabel of France had been his fecond wife j and that he had had fons by his fir ft wife, as well as his fon Edward (who w^s afterwards king of Eng- land by the title of Edward the 3d) by Ifabel, his fecond wife. In fuch a cafe it is evident that king Edward the 2d's eldeft fon by his firft wife would have fucceeded to the crown .:/' • . of # [ '59 ] of England, and Edward, his eldeft fon by his fecond wife Ifabcl, would have had the 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 3d to the crown of France v/as totally unconneded 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, (hould have conquered it, had no other claim ^t all but that of conqueft. tw . \ /.•■■i"i ENGLISHMAN. : ^^ ' I intirely agree with you in thinking thefc two inftances of Gafcony and Calais quite foreign to the prefent queftion ; and for the reafons you have given ; they having been poiTefTed by the kings of England by right ,t: ' y 11 ' • P the £ngli(h parliament* t ifo ] of marriage and inheritance, and not by right of kge'^ivfn to conq^cft. And,as to what Ld. Mansfield adds, Calais to fend that, when the burgelTes of Calais were im* powered to fend nnembers to the Englifh par- liament, this privilege was given them by the king alone, and not by ad of parliament, it feems to me to afford no fort of argument for fuppoflng (as Ld. Mansfield feems to do) that> before this privilege was grahted them, they had been governed by the authority of the Crown alone without the concurrence of parliament ; becaufe, if this reafoning were allowed, it would prove that many places in England itfelf had been fubje£t to the fole legiflative authority of the Crown till the reigns of king Edward the tth, queen Mary, queen Elizabeth, and king James the i (I ^ (ince 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 \ } ''I [ i6i ] Edward the 3CI and his fucceiTors did govern Calais by their own authority only, and without the concurrence of parliament, until they permitted them to fend members to the Englifh 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;) 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 pofTefiion, in a different manner from the kingdom of England, his paternal inheri- tance, with which the former kingdom had no connection but that of accidentally being fubjedt to the fame king. • ^ But indeed the indance of Calais feems to me rather to furnifli a ground for a conjedure that is adverfe to the dodtrine of the fole legiflative authority of the kings of England over countries obtained by conqueft. What I mean is this. Calais was pofTefTed 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 YoL.II. Y Edward The conduft of the kings o£ England with refpedl to Ca- lais is rather adverl'e to the doftrineofthe fole legiflative power of the Crown over conquered countries. li tKiM !^ S' i,n m m I I I '> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I u lU 12.2 iil L° 12.0 IL25 Oil 1.4 I 1.6 6" Hiotografdiic Sciences Corporation \ < V> ^ ^^^ 23 WfST MAIN STRUT WEBSTER, N.Y. MSM (716) S73-4S03 '^ 1 i i) •.«. V ;..^^» vi :". .. ;7bu . . ': J Edward the 3d to that of king Edward thfli 4th the kings of England endeavoured ; tc| make good this claim by force of arms« And, even for fome years ^fter Edward thct 4th 's reign, the meii^ory of the wars in France, {which had ^aken their rife fronpi» this claim,) was frefh ^n .the minds of thq Englifh nation, and the inclination to renew thofe wars, and again endeavour (o eflabJiQi that claim, was dill alive. At lad this ^e^ iign feems to have been quite laid afidCj though the claim itfclf has never been formally given up even to the prefentdayi but our kings flill flyle themfelves king$, of France. The defign of recovering ; the kingdom of Franca by force of arms feenjs, however, to have at lad been laid afide, but not before the reign of king Henry the 8th, who, we muft obfcrve, was the very king that gave the people of Calais the privilege of fending members to the Englifli parliar menf. So that jufl: at the time when Calais might feem to be no longer poflefled by the kings of England by virtue of their heredir tary claim to the crown of France, that claim being no longer purfuedj — and confequently .• iuft » **,t ■ ' r 163 ] 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 ', king Henry the 8th, (a prince who was by no means difpofed to leflen his own ^oyal prerogative,) thought fit to incorporate Calais with the kingdom of England, by Impowering its inhabitants to fend members to the Englifli parliament, and confequently to permit the parliament to partake with him in the power he had before enjoyed alonfc (if he did in truth enjoy the faid power) of making laws and impofing taxes on them. From this proceeding I fhould be inclined to draw this conclufion, that, whenever a country becomes an appendage to the crown of England, fo as to be pofTefled by the kings of ' England jf kings of England, or rcitxtXy becaufe they are kings of England, the parliament of England ought to partici- pit' v^ith the king in the exercife of the kgiflative authority 6ver fuch country. But r lay fto great ftrefs ori>thisargUmcnf, which is Ctrt^niy doubtful and conjedtural. All! pretend to be clear in with refpeft to this ¥2 indance I. ■■><% m ■V. Al' t ill Of the pro* vince of hfew- YorkinNorth- America. i [ «64 J indance 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. ''■I I think you mentioned New- York amongfl; the indances 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 lordihip fay with refpedt 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 (ingle authority for any coniiderable length of time, without the interpolition of the Englifh parliament or an affembly of its own inhabitants, I (hould eideeni it to be a much more refpedable precedent in £ivour of the royal prerogative in queflion, 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 fuch a ,^ ( legiflative t '6s ] legiflative power in the crown in fornier times : becauie, as New York is a part of Aaierica, 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 df Grenada, and the conftitution of the Englifli government at the time it yf9» 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 legiflative autho* rity by the crown alone over the faid pro- vince, after king Charles's acquifition of it, ^ continuance of the fame authority over the countries that have been lately acquired by t|ie crown by conqueft (fuch as Canada and Grenada,) until his Majefty thought fit to 4iveft himfelf of it by his proclamation of the 7th of Odober, 1763. I am therefore yery defirous of knowing what Lord Manf- field faid concerning this important inftance of New- York, ENG. 1 H i' m ■?;' m .ri m til ilil HI Lord Manf- field*s words concerningthe laid province. I 1^6 ] \o nuq ii E N G L I S HM AN. J : cjiu j * ' The cafe of New- York would indeed be a very importatit precedent, if it were true that that prbvihce had been a conquered country, and had been confidered as fuch by king Charley the 2d, who difpoflefled the Dutch comtn6nwealth of it,' and that, after having conquered it from the Dutch, king Charles had enjoyed and exercifed a perma- nent legiflative authority over it, without the interpofitidn of either the Englifh parliament, or an aflembly 6f 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, cr five and twenty, years after that event. As to what Lord Mansfield faid tipon the fubje(5t, it was" contained in thefe* f^W word^l "After the confqueft of New- " York, in- which moft of the old Dutch " inhabitantsTctnained, king Charles the 2d " changed -their conftittrtidii and political " form of government, and granted it to the *^'' -^ -duke ** duke of York, to hold from his crown " under all the regulations contained in his *^ letters patent, j^ J. ^j,,i ,jg <(> ^^;.; ^- ^ f,| rx': .^qw.. FRENCHMA-Ni' ^'■■'^•'>-»-''-:> .1* ;•?;.. ^d t.-, .iD r * I perceive by thefe.^ords, thlit^L^d Minf- An inquiry field fuppofcs Newi^York f<y''hav^-'1)ein k To,*^ Ncw-°^ tonquered coimtryiiiand to ikveM^feeh-tdrt* co^nqueJa * iidered as fuch^: and: grounds Ills iiiYgunfibflt counuy. b favour df tba legiSative authori^ of 'thi crown upon that ckcuraftaftcei '^Aiid; t6 conf(^& the truth, >i' had alWafyi^ conceived the fadt to be fo 5 t}iat is, that New-York had been originally a Dutch fettlement, iand had. been conquered from that < common-^ tjn...«i .> ivealUi by the arms of England in the reigh 2 ii h. ♦i.r» <. ofkingCharlesthezd, and had been always coniidered by the crown of England iii 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 righti if this notion of the matter is a miftakenone. nr:f>?fr^i .1 .^ad fHiij^aH '3i!i d-jtAft m MnJ 'J irifit k '.u^:cl:rtn: rf;;ENG^ .. t(>:.> fi>i.;,-<'»f M Ih ' f' 11. ^- i M^'i ■,.ii ,, IJ u m t 'M ) nwi>T) c' .1 ffi f . ? . J •>f4*tfa siii Cll D .ENGLISHMAN, ' *•;!. r f?. "0 ,1.<»J.<,,! . .« fN • 'U 1>. rvi'pit'..' 9%is province was not confi* dered by king Charles the fecond as a conquered country, but as a part of the niore anticnt Sngliih colo- ny of New* England. In the view of an impartial hiftorian and philofopher the firft part of what you have conceived upon this futjr^ niay, perhaps, be true ; that is. that New-York was really at firft a Dulch fettlenient, juftly belonging to the Patch cdaunoDwealth, till it was can-» quered f«oi|i; tbem by the anns of England in the yeir t (64 in the beginning of the firft Putcb war in the reign of icing Charks the iecondi though even this is not abfolutdy certain* But it is not true that king Charles the fecond, or the Engliih nation in general, coniidered 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 poiTefled by the Dutch, and known by the name of the New Nether" lands J as a part of NeW'England^ and as having always belonged to the crown of England, ever (ince the planting of New^ England, as much as the refl: of New Eng- land, in which the Englifh had adtually made fettlements. And they accordingly confidered the Dutch inhabitants of that country as having [ 169 1 having fettled themfelves upon EngU(h ground without authority and contrary to jdlice, and as being therefore juftly liable to . be expelled from their fettlements 'whenever the Englidi government (houid think proper,, unlcfs they would furrender themfelvcs to the Englifh government and confider themfelvcs as fub- jc&s of England. This opinion had been entertained in England and in the Englifh colonies in New-England before the reOiora- tion of king Charles the fecond ; and Richard Cromwell, (who had fucceeded his father Oliver as prote(5lor of the commonwealth of England,) had even taken fome fteps towards accomplifhing a defign that had been entered into for the redudtion of that country to the obedience of the Englifh government. How far theiepretenfions of the English were well founded, I will not pretend to determine. But that thefe were their pretenfions, and that king Charles the fecond claimed the countiy upon that ground, and upon that ground only, will appear beyond a doubt from the follovifing cxtradl of a letter, which ^lonel Nicholls^ ^(the commander of the armament which king Charles fent out, in . Vot. II. Z the 7; ii- J c-iiiv-.;''' •; • i i/tr.i '. ifj'XvJ ti; , J •-■ u% >] ;;;4 u| m Colonel Nl- cholls's letter to the Dutch governours of the faid pro- vince, requir* Ing them to furrcnder it to king Charles the 2d. A.V, 1664. f '70 ) ■ , the itimmer of the year i664» to recover the country from the hands of the Dutch com- monwealth,) fent the Dutch governours of the country (who refided in the iHaud of New-York> then called Mauhatlmut) . in i^nfwer to a demand whi(;h they bad tnade to him of the re^fon of his hoAile approach towards them} which had very naturally feemed flrange to them, as the ^var betwe.ei> England and Holland was not yet beguile - o *• To the Honourable the Goverhours and ** Chief Council at the Manhattans. ^J^iiO "I* Received a letter by fomc worthy perlbns « \x i (C Right worthy Sirs, 1 intruded by you,: bearing date the ^ ot " Auguft, defiring to know the intent of ." the approach of the Englifh frigates : in f ' return of which, I think it fit to let you " know, that his Majefty of Great-Britain, f* whofe right a?id title to tbefe parti t^Ame*' rica is unqueftionable^ well knowing how much it derogates from his crown and dignity to fuffer any foxtigners, (how near t^ foever they be allied) to ufurp a dominior^ wuj »v .ii. " and* C( <c «< t *7' ] and, without his Mjkjcfty*s royal conrcnt, to inhabit in thefc'Or 'dny other of his Majefty's tcrritoricSi hath commanded tne, in his name, to require a furrender of all fuch fofts, towns, or places of flrength, which are now pofTefTed by the Dutch uhder your commands. And, in his M&- jefty^s name, I do demand the town (ituate on the ifland commonly known by the name of Manbatt^ef^ with all the forts thereunto belonging, to be rendered unto his Maje(ly*s obedience and protedlion^ ** into my hands, &c." ^ ll^' <c f< u it cc «c cc (C u u «( cc 'yf\!'f t^.' i The city fituated on the ifland of M/;/- ^ hattoeSy or ManhattanSy was then called NeW'Amfierdam^ and fince that time New- Tork, .;.^. _-■■ . -wf.ijr rt, -| J: .JQ y^i^l\l:tiS\ -ur/iSt •»'S».C^ ^ The faid city and the country belonging to it were furrcndered by the Dutch governours to colonel Nichols foon after this letter of fum^ mons. You will allow, I believe, that it is plain from the foregoing letter t|jat king Charles the fecond did not confider this country as the property of the Dutch commonwealth X 0, and The faid country wai accordingly furrcndered to Col. MicholLv Cpnclu'fion' . lollowing from the faid letter and i'ur- rendci;. -jfl '■■■M ;4 I ,ll. >\ T.li • it... and an objedt of conqoeft, properly ib 6alled» notwithftanding the great number of Dutch inhabitants who contifiued in it, but as a part of his own dominions, of which the Dutch bad funreptitiouily and unjuftly taken pof* leffion, and from which it was therefore both juft and neceflafy to expel them. And, accordbgly> he h^d^ before this expedition of colonelNichols againft this country, (which was deflined. to recover the pofTeflion of it to the ^own of England) made a grant of it, by letters patent under the great feai 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 tra^ of land that already belonged to him, before ever colonel Nichols failed from England. Surely, after this condudt of the crown with refpedt to this province, it can never be coniidcred as a conquered country to any legal view or furpofey and confcquently cannot juftly be alledged as an example, or precedent, of the prerogative of the crown of England witl^ refpe(^ to conquered countries. U\ril< FRENCH- [ 173 1 FRENCHMAN. It certainly cannot : and, whatever was th« manner in which king Charles governed if after he had got pofTcflion of it,— whether he made laws for it with, or without, the con<^ currence of his parliamenti or an afTembly of the people j — it can have no relation to the quedion we ^are now difcufling concern- ing the prerogative of the crown with refpciH: to conquered countries. I therefore do not wi^ to know the further hiftory of this pro-)* vinco with any view to throw light upon that qaeftion. But yet I fhould be glad to be informed of it on another account ; and that 3s^ to fee how far the kings of England have 9t flny tim? aiTumed and exercifed a legifla- tive authority over any of th? out-lying do- minions of the crown, that have been fettled, or planted, by colonies from England ; which is certainly the true legal view in which New- York ought to be confidered. For I think I have fometimea been told, that the kings of England had, upon fome occafions, pre-» ^nded to a greater degree of legiflative power over ^he remote and didant dooynions 1^ . ,' ^ ■ of- .J''. . I 4 • 1*.. I •:. OfthelegiOa. tive authority claimed by tht crown overco- lonies planted by Englilh. men. i 1< 'M I ■ lii ?:! H > 1;f| V iit'i m ',> ^ li 'M 'M 'llliii i m IV of the crown, though fettled by colonics from England, than over the kingdom of England itfelf. I fliould 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 invasion of colonel Nichols. itr? -ni3:;r*c englisMMa'n. ■'""^•■■^'•' 1*) ?^yt«rjit^'vnl :^iil Vi'-'. The Crown has formerly claimed a compleat le- giflative au- thority over alltheEnglifti colonies in the world, n^^-} ■ '■ ■ - .»•: ■■>'':(•! King Charles the I ft np- pointed com- miliioners to excrcife this kgiflative au- thority over them all, in the year 1(536, iv I believe that fome fuch pretenfions, as you fpeak of, to a higher degree of legiflative power over diftant colonies of Englifhmen than over the inhabitants of England itfelf, may have been madfe by the crown in former reigns, and more efpecially in the reigns of the Stuarts. And indeed there is extant a famous inftrument of this kind in the reign of king Charles the i ft, by which that king appointed commiflinneis to make laws and ordinances for the government of all the Englifti colonies all over the world. This inftrument was palled under the great feal of England in the year 1636, which was the time of the moft arbitrary government of that mifguided monarch. It appointed twelvq ii' > perlbii^ ns, as illative (hmen t itfelf, former igns of tant a reign X king s and II the This feal of as the ent of twelve perlciit Extrafls from the commif- JiiJ T'i [ 175 pcrfons of note, (who were, all of them, members of the king's privy coancil, and nioft of them great officers, of ftate,) to be the king's commiffioners for the following general purpoie, to wit, ad regimen et tuta- fion R»ven to n^ di^iarum cotoniarum deduBarum^ *i)el qua miffioncrs. gentis Anglicana in pofterum fuerint in parti^ ius bujufmodi dedudia; and gave them a power of eftablifliing/sgifii conjlitutiones^ et ordinatio^ neSi feu ad publicum coloniarum illarum fiatum^ feu ad privatam fingulorum- utilitatem perti» nenteSy eorumque terras, bona, debita, et fuc* cejionem in iifdem parti bus concernentes j — — ac qualiter invicem et erga principes exteros eorumque populum, nos etiam et fubdilos noftroi tarn in .partibus exteris quibufcunque. qudm in mariy in partes il/as, vel retro, navigandoy fe gerant \ *vel qua ad fujientationem cleri^ exercentis regimen vel cur am animarum populi in partibus ilUsdegentis^ congruas poriiones in decimis, oblatii>nibuSy aliifque prbventibus, de» Jignandp, jpeBant ',"'^juxta [anas difcrctiones fuas, et habito confdio duorum vet trimn epifr coporum (quos ad fe cowvocandos duxerint necefarios) in eeclefiajiicis\ — et ckro portiofies defignandii condcndi, jacic?idi, et edendi :"— m}, V ' ac 'II i'l m 'ii, I' 'Mi- 'mi i m ' ill ,;f:r ii!l I •flUiiT Jaid commiCi [ '76 ] Iff m /(!jg[^/ri, cgnjlitutiomu^t tt ardinatUiia^ iUarum inoktores pcerias xl nudSlas^ in^qfidaf' nem^ incarceratimem, et aliam quamlibo^ es* piionemt etianiy (fi oporteat\ it MiQi qmliikt exegeriu) per membri n)el viUe prii^atimm^ inftigendas frmidere ; &c» Here you fee the crowp undertook to delegate to its commit fioners a compleat legiflative {X)wer over all Powers dele- the Englifh coloiiies in Aaiq:icai. For it w^s a power of making laws and ordinanc^s< re* lating either to the publick condition of thole 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 dates j — -and to their -bc^ haviour towards the king and his other fub* jeds, either in foreign countries, or on the high feas, in going to, or coming from, their fettlements ;— — and to the maintenance ©f the clergy who exercifc the cure of fquls 4n the iaid 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 laws upon all thefe fub- jeds, and of infliding fuch puniflinKnts as :\4 they ' [ J77 1 they fliQuid think fit (not excepting even the lofs of life or limb, in cafes yphere they (hould judge it ncceffary,) on thofcr who (hould difobey the iaid laws and prdi^aAces : which is as large and general a legiflative f>ower as can well be conceive^* The pe^t branch of the coqimiflion gives ibc^ cpiH'' niiffioners a power to place and difplace the governours of theAniericancolpnies at their difcretion, and to call them to account for their mifcondudt in their government, and to puniih them for the fame either by fines, or mulds, to be levied vpon 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 aliteri fecim^ dum quantitutem deliSil, safligare. It alfo gives them a power to appoint judges in all forts of caufes, and of ereding cqur.ts of juflice of all kinds, for the determination of civil and criminal matters, and fpr the de- cifion of ecclefiaQipal ca^fcsi and pf ap- pointing the -nfiodes of -proceeding in the faid courts. And then follows a prpvifoe, which ordaips that the laws and ordinances which ; Vol. II. A a thefe A remnrkaWts provilbjinthe iaid co.Tinjir- iioii. I i,:, !! i' ■ Uh in N~ x'Ul W I •^ir thcfe commiflioners (hall make in the (aJd colonies by virtue of the authority thereby given them, (hall not take efFedfc till they have received the kinjy's own aflcnt in writ- ing, tcftificd at leaft under the royal (ignet, if not oi^der the greats br privy, feal 5 but which ci^dares that, after they have fo re- tdived thb (aid royal a(Ient, they (hall have the full force of laws, and be obeyed by all theptrfons whom they concern. Thispro- vifoe' is e3tpre(red iri thefe words. ' • Provijb tafften^ quod leges, ordinationeSy et conjiitutiones bujufinadi executioni 'mn niandentur 'quoufque affenfus mfter eifdem adhibeatur regius infcrip^ th fuhfignetto nojiro fignath ad minus, Et hujufmodi ajfenju adhibito^ eifque puhlice pro-> mulgatis in provinciis in quibusfint exequenda, teg£s, or dinat tones, et cmftitutiones ilias pie- narie juris firmitaf em adipijci, et ab omnibus^ quorum interejfe poterity inviolabiiiter obfer-r vari, volumus et mandamus. The remaining part of the commiflion gives the conimifiion- ers a power to hear and determine complaints againft particular colonies, or X^t governdurs of them, and difputes betweei^ colony and colony concerning encroachments on each .\\ . I other's .\ V- ( 179 ) * other's territories, or other injuries, and, after having heard fuch complaints, to order either the governours of any of the colonics, or the whole colonies thenxfelves^ to come back to England or to remove to fuch other places as the laid commifTioners (hall allot to them for their habitation : and laftly, toinfped; and examine all the charters which the king, or any of his predeceffors, may have granted to any of the faid Engiifh colonies; and,, if they fliall 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 annult them. - V t. ,,-*^A-*^ j.^ ir^t. .'\\..i :i9 .;£,j; ... '* t-., ■> ,--.. > Thefe were the contents of this famous ^ "Remark oi^ the atore aid^ comminjon of king Charles the i^^ by which commifiion. we plainly fee his notions of colony-govern-^ ment. But, I prefume, he was as much miftaken in thefe notions as in his conccp-^ tions of the rights of his crown over his fubjeds in England itfelf, where his mif- govcrnment was attended with fuch fatal confcquences. So that nothing ought to be A a 2 infi^rred I Tt ■J) I 1. I .! ii :^ 111 [ l8(3 1. inferred from his opinions^ or praftites, iti this bad part of his reign (when he governed England itfelf without a parliatnont,) con«« cerning the juft and legal prerogatives of the crown of England even at that time, and much lefs concerning thofe which exift at this day, when the libei^ties of the people are both better known and afcertained, and alfo extended further, $nd more firmly efta- bliilied, than they were in the reign of that king. ^ . ^ • uKiu V ii;^ Names of the fhe perfons to whom the aforefaid com- perlons to * -^ xvhomthefaid mlffion was granted were thefe j Dr. William was^rtnted. Laud, the cruel and mifchicf-making arch- bifliop of Canterbury, who was the advifer of mod of the unhappy meafures that oc- . 1 ; cafioned the civil war that broke out a few '• It years after between the king and parliament ; the lord Coventry, lord keeper of the great fealj the archbifhop of York j Dr. William Juxon, the bifhop of London, who was at that time lord treafurer ; Henry Montague, earl of Man- chefter, the keeper of the privy feal J Thomas Howard, earl of Arundel and Surrey, the carl-rmarfhall of England ; Edward Pierpoint, C^rl of Dorchcfter, ch'amberlain to the queen J • Sir I pi! IP I i8i ) Sir Francis Cottington, lord Cottington, chan- cellor and under-treafurer of the Exchequer, "'' and mafter of the court of Wards and Live- ries ; Sir Thomas Edmonds, knight, the ' trcafurer of the king's houfliold 5 Sir Henry Vane, (the elder,) knight, the comptroller of the king's houftiold ; and Sir John Coke, knight, and Sir Francis Windebank, kjoight, the king's two principal fecretaries of flate. Any five, or more, of them might execute the powers of the commiffion. This mode of governing the colonies continued about fix or feven years, that is, till the enfuing civil war, which begun in the year 1642. In the following year 1643 the parliament ^^m^^^^ at Weftminfter, who conduftcd the war American co- againfl king Charles the 1 ft, took upon the'civii 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 regulator; ing the plantations, and made R,obert Rioh^ earl of Warwick, who adted as admiral of the £ngli(h nation under the authority of the par- liament, the governoqr in chief of them all; they confidering the plantations as a proper appendage to the marine department. And by •St: :t'i .:<\: I, I > II wealth of En^laid. by this committee the plantations fccm to ofthcgovern- [j^yg be^jj governed till the year i6co, tncM o* them ° j j ' in the time of when England was governed under the form c common- ^^ ^ commonwealth, without either king or houfe of lords, by a remnant of that famous houfe of commons which had made war againA the king. The only civil authority then in being in England was veded in the laid remnant of the houfe of commons, (which was then called the Parliament of the Commoirwealth of England^ and pofTefTed the whole legillativc authority of the itatei) and in a council of (late, appointed by the faid parliament, who were entruiled with ail the executive power. And in this year, 1650, an aft was pafTed by the faid repubf lican parliament, which veiled the govern* ment of the plantations, in a great degree, in the faid council of flate. What further changes happened in the government during tiie ufurpation of Oliver Cromwell and his ion Richard, (who were called PnteSors of the commonwealth) and the fubfequentyear of anarchy and confuficn, before the return qf king Charles- the 2d. in 1660, I do not cxadly know, nor think it material to in^ •'"•'Uih t>nn 4» .i.vri'.ni'T^i-'pM ^nnsra ;^ai ct ^riquire. [ j83 ] • . - * » , , - - quire. But after the faid return, (which is commonly called the Rejloratwi^) there was no attempt made by the king to revive the aforefaid legidative commiiTion, which had been granted by king Charles the i ft, ndr, in any other form, to alTume and exercife a legidative authority over the American colo- nies by virtue of the royal prerogative only, and without the concurrence of parliament: but the famous navigation-adt, and many other ads of parliament were pafled, after that period, concerning the faid colonies, by the king and parliament conjointly, in the fame manner as with refpedb to the kingdom of England itfelf. It leems reafonable there- fore to conclude that, ever (ince the reftora*- tion in i66o, the kings of England them- felves, as well as their fubjeds, have been of opinion that they were not authorized by virtue of their royal prerogative alone, to make laws for their fubjed:s 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 afiemblies of the freeholders of the feveral plantations for which they were to be made, j^ ^3 <! ?^tW' ;'^ y ' ' . This Of the govern- ment of them aftfcr the iU« lloraUoo. .;^^. \ d,^i:s .;;if.'4..u '-v^ii T.f' ■-'• !'>r f'Ml' Conclufion concerning the right of legiflation <»< vcr the Ame. rican cotonies fince tkac time. 'h M I II : I ': ' t 184 ] ♦ The kln« of ^\^ fccms to havc been the cafe with rc- Engjandreem, ; cveo aher the {pc^ to thc snofc antient American planta- have daimed tions, in whicb aflemblies vof the people had f;if^'^jj*f ^-^ been cftabUihcd, fuch as the plantations of new colonies, Ncw-Englind, and Virginia, and Barbadoep, aflembiies of and the Lecward iflands. For, wida refpedt y«^en eiu- ^^ ^^^^ plantations as had been lately acquir- I mtd. ■*rt \ ■ (> ;ti>'t ed» or recovered, and in which aHlen^ties had not yet been eftabliihed, the kings qF England, after the reiloration, feemed dill to claim a right of making laws for the in- habitants of them by their fingle authority, or without the concurrence of parliament, with refped: to their internal government and -domedick concerns, though they adted in conjundion 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 166a to the year i68f , that is, by a governour and council only, without an affembly of the freeholders of the ifland: which governour and council were nominated - • , • by r '85 ] by the king, and exercifed a legiflativc power over the inhabitants of Jamaica, thouc;h they were almoft all Englifli fettlcrs, the Spaniards having, for the moft part, abandoned the ifland loon after the conqueft of it in the year 1655 during Oliver Cromwell's protedlorihip. All the firfl: laws ei>aded in Jamaica were enadcd, (as I have heard,) by thegovernour and council only : and, (as I fuppofe) there mud likewife have been fome taxes impofed upon the inhabitants, for the fupport of their internal government, by the fame authority. But in the year 1 68 1 an affembJy of the people was called, who concurred with the governour 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 pofTeflion of his father's throne,) to the year 168 1 ; but 1 am not quite certain about it, not having met with any dillindt account of it in any book of note. But, with refped to the province of New-York, I can fpeak with greater certainty, from the autljc- rity of Mr. William Smith, the great hvvycr Vol. II. Bb . ' of The ifland of ^i Jamaica was Ij governr^d by , || the kind's \i fingle authori- ty, without .'ui 'j aflembly of ^ the people, from the year ! 1660 to the I' year 1681. 1 1 V Wl j '' * 11 *|i m ■H lip V; 1 1 % i i The province '■ oi Ne'.v-Yorlc ) 1 I',: At! was goverried } in the faiini mariner by the ciiikeoPi'ork's i ST cicpucies ivoin the year i6J^ to the year 16S3. I ■ ^ 2 1 if % :<S| HWk u 'W y ; .. •;♦ ^1.1. M I '86 ] of that province, who has publi(hed a faith- ful and indrudive hidory of it. And here it appears that king Charles the 2d claimed a right to the fame legillative authority, and delegated it to his brother, the duke of York. For in the grant the king made to the duke of 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 afTembly of the free- holders. This authority he, for the mod part, exercifed by deputy, that is, by a go- vernour and council, whom he appointed for Col. Nichols the government of the province. Colonel govcrnour of Nichols, who rccovcred the country from Lke"of Yoik^ the hands of the Dutch, was the firft go- vernour of it under the duke of York : and the title, under which he took upon himfelf the government of it, was that of deputj- governour^ under his toyal highne/s the duke of Tork^ of all his territories in America, This I '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 confidered by the Englilh nation as a country acquired by right of war, but as a country recovered from the unjud poflefllon, or ufurpation, of a foreign ftate. This country remained in the pofTeflion of the Engliih all that firfl Dutch war, that is, till the peace of Breda in July, 1667, and was left in their poflefllon by that treaty. Colonel Nichols continued governour of it, under the duke of York, during the greatefl: part of this period, namely, till the month He was fuc- of May, 1667, when he was fucceeded in bneiLovdace that ofHce by colonel Francis Lovelace. ^ in May, iO^?. I V This colonel Lovelace was likewife a man of great moderation ; and the people lived peaceably under him till the country was Bb 2 a 2 am m vv p.l n i. L j •r ^i The province was conquered by the Dutch in the. year 1673 i bnt reftorcd to the crown of England at the peace in 1674. [ 188 J again reduced to the obedience of the States of Holland in the year 1673, which was the fecond year of king Charles the 2d*s fecond Dutch war. But this 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...1 3iid3 '..r-. ■■-^?no"' ,y:4.. :^ ., j;,;i.-// t-"^ . . «*«4 ' «••''» ' r -. 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. Helsfucceed- ed by colonel Dongan in Augult, 1683. Upon the conclulion 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 bv the Dutch, and reflored to the crown of England,) obtained a new grant of it from king Charles, dated the 29th of June, 1674, and, two days after, commiflioned Major Edmund Androfs (who was afterwards better known by the title of ^ir Edmund Androp) to be governour of his territories in America, He was a man of a tyrannical dilpofition, and made himfelf odious to the people under his government. However, lie continued in the office till the 27th of Augud, 16B3, when he was fucceeded in it by colonel 'r- ' Thomas (189) 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 profefled paplft, may be clafled 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- tion in the legiflative power under colonel Dongan : for (hortly after his arrival, he Col. Dongan iffued orders to the (herifFs to fummon the afibmbiy of free-holders for chufing reprefentatives to ^rs irSaober' meet him in aflembly on the 17th of »683. Odober, 1683. Nothing could be more agreeable to the people, who, whether Dutch or Englifli, were born the fubjedts of a free (late. Nor indeed was the change of lefs advantage to the duke than to the inhabitants. For fuch a. general difguft had prevailed, and in particular in Long ifland, *' againd the old form which Col. Nichols " had introduced, as threatened the total ■ • « fubveiiicn (( cc c< <{ cc cc (C cc cc cc cc cc cc cc tt: 'I.. A-M n- « « « cc cc <c cc cc <c cc cc cc cc cc cc cc cc cc cc cc cc cc \ 190 1 fubverfion of the publick tranquillity.' Colonel Dongan faw the difaffedlion of the people at the eaft end of Long ifland j (for he landed there on his firft arrival in the country ;) and, to extinguifh the fire of difcontent, then impatient to burft out, gave them his promife that no laws or rates for the future Jhould be impo/ed but by a general ajembly, 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 fent him foon after an addrefs, expreffing the highefl fenfe of gratitude for fo bene- ficial a change in the government. It would have been impoflible for him much longer to have maintained the old model over free fubjeds, who had juft bpfore formed themfelves into a colony for the enjoyment of their liberties, and had even follicited the protedtion of the colony of Connedicut, from whence the greatefl part of them came." The petition to the duke of York, by which he had been ftrongly importuned (as this author exprefTes it) to confcnt to this altera- tion ( '91 ) 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 ailize on the 29th of June, 1681, and contains many fevere refledtions upon the tyranny of Sir Edmund Androfs. . < • ;.j -.1. r.' 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 aflembly of the freeholders, without any attempt in the go- vernour and council to exercife it without the aflembly. From the year 1683 the pro- vince has been governed by a governour, council, and aflembly. i'i {' Upon the death of king Charles the 2d ^'"" 'H®^" f 1 • t t r ceffion of K. the duke of York, his brother, lucceeded to James the zd the crown of England by the title of James Jhe^faid'^* the fecond, and confequently both the pro- vincehasbeea A ./ *^ a royal go- perty, or immediate Iord(hip, of the province vemmcnt. of New- York and the powers of government over it, became again vefted 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 veiled in the crown ever !ii m :i Li f 192 ] • ever fince 5 fo that now, and ever (ince the acceffion of James the fecond to the crown, ^ which was in February, i684.\theappoint- '•••c- 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. iJ 4 «.«» rj Of the laws pafled atNew- York before the e{labli(h- ment of an aiTembly of the people. They were called Tibe Dukis Laws, 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. " From the furrender of the province to " the year 1683, the inhabitants were " ruled by the duke's governours and " their councils, who, from time to time, " made rules and orders, which were *' efteemed to be binding as laws. Thefe, " about the year 1674, were regularly " colledcd under alphabetical titles; and " a fair copy of them remains amongft our records to this day. They are com- monly known by the name of I'he " DiikiS (C c« [ m ] Dukes Laws, The title-page of the book, written in the old court-hand, is " in thefe bald words : . cc « ' 1 J JUS NOViE EBORACENSIS, - V E L, LEGES AB ILLUSTRIS3IMO PRIN- CIPE JACOBO, DUCE EBORACI ET ALBANIA, &c. INSTITUTiE ET ORDINATiE, AD OBSERVANDUM IN TERRITO- RIIS AMERICA; TRANSCRIPTS ANNO DOMINI M DC LXXIV. « Thofe ads, which were made in 1681J, ^f tjie laws , ^ palled m the and after the duke of York's acceflion to province ot the throne, when the people were admitted f>om the year to a participation of the les^iflative power, '^^3 ^" '*?*^ r r t» r » Revolution m are, for the moil part, rotten, defaced, or 1688. loft. Few minutes relating to them remain on the council-books, and none in the journals of the houfe of afTembly." ' Vol. II. Cc The cc cc cc cc cc cc ic m Sim m 1 ' .».;^ 'S I «• i Of the firft aflembly of New-York after the Re- volution. / « A remarkable refolution of the fa id af- fcmbl/. [ '94 J The firft aflembly after the great and happy revolution in England in 1688, was called by colonel Henry Sloughter, who was appointed governour of New- York by king William and queen Mary. - It began on the 9th of April, 1 69 1. 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 coUedtion of the adls of the le- giflature of the province of New- York pub- liflied in 1752, the compilers were direded to begin at that aflembly. And he adds that the validity of the old grants of the powers of government, in fcveral 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 afl!embly of the province of New- York, before they pro- ceeded to pafs any new adts, unanimoufly refolved as follows j to wit, " That all the " laws confented to by the general afl^embly " under James, duke of York, and the ** liberties and priv'iie^es therein contained, . J ** granted cc cc cc (C cc cc cc [ '95 ] granted to the people, and declared to be their rights, not being obferved, nor ra- tified and approved by his royal highnefs nor the late king, are null and void, and « of none effea. AND ALSO, the feveral " ordinances made by the late governours and councils, being contrary to the confli- tution of England and the pradice of the government of their Majefties other plan- " tations in America, are likewife null and " void, and of no effect, or force, within ** this province." The latter part of this refolution fhews plainly that it was the opi- nion of this afTembly that the duke of York had not been legally poflefTed of the legifla- tive authority which he had exercifed over the province of New- York by his governo\irs and councils before. the year 1 683. Mr. Smith tells us further, that it has, more than once, been a fubjed of animated debate, whether the people of the province of New-York had a right to be reprefented in aflembly, or whether it be a privilege enjoyed through the grace of the Crown ; and that a memorable ad of aflembly was C c :5 pafTe^ ,|:1'^l "* ', 11 1 A men-.orable i lllllll ad of the go- li iii vernour, u| In council, and n ill affcmbly of ffl III New-York in 111 1 9 ' thej?cari69i, 11 njii '91 containing a IP'I declaration of their rights. 5 lii'ii ill - 1 %\ 1 It was afrer- 1 Bi Hi' wards difal- ||H|{H|! lowed by K. llli P' William in the 1 1 ll I yc^ 1697. Irl : 1 Conclufion I {) It '|ii| drawn from H i P'jji 1 the foregoing 1 , account of the 1 oimK government of the provin- ces of Ame- H 1 V nli ^1 ' m BIS rica. ini 1 II II [ '96 ] paffcd by the govcrnour, council, and aflem- bly of New -York in this famous lefiion in the year 1691, which viitually declared in favour of the former opinion, and which contained feveral other declarations of the principal and diftinguifhing libc^rtics of Eng- lifhmen, being intitled, " An a5l declaring what are the rights and pri'vileges of their Majejlies fiihjeBs inhabiting within their pro- vince of New-Tork" But Mr. Smith adds that it mud, neverthelefs, be confefTed that king William was afterwards pleafed to repeal that law in the year 1697. It fcems therefore to have been the opinion of the kings of England, even fince the Re- volution, that they were poffefTed of an origi- nal right of making laws and impoling taxes in all the dependant dominions of the Crown, thofe which were properly colonies^ or plantar tionSy fettled by emigrants from England under the authority of the Crown, as well as thofe which were conquered from foreign ftates 5 and that this right continued in them till they had voluntarily divefled themfelves of it by charters, or proclamations, or other fufficient I '97 ] fufficient inftruments under the great feal, communicating a portion of it to the inhabi- tants of fuch dependant dominions, to be exercifed by aficmbhes of their reprefenta- tlves. This, I fay, feems to have been the opinion of the kings of England : but it does not 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 leafl: iince 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 dodtrine, therefore, gf a fcie right of making laws for the de- pendant » 1 [ 198 ] pendant dominions of the crown of England being originally vefted in the crown and con- tinuing in it till the crown (hall have volun- tarily parted with it by an adt under the great feal of England, may be juftly confidcred as, at leafl, a doubtful dodtrine, if not a falfe one, fince it has never been freely recognized by all the parties whom it concerns, which alone can make a dodlrine concerning politi- cal authority quite clear and certain. But the claim made to !his power of legiflation by the Crown (whether well or ill founded) feems 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 pf New- York was confidered in the former light by king Charles the 2d, and claimed and feized by colonel Nichols upon that ground before the dectaration 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 [ 199 1 the Spaniards during the ufurpatlon of Oliver Cromwell. And, if it ihould be ailedgeJ that Jamaica, though conquered from the Spaniards, was never thelefs confidered by king Charles the 2d as a colony, ot planted country, and not as a conquefl, becaufe of the almod total abandonment of it by its old Spanifti inhabitants foon after the conquefl of it, we fhall then have two examples, inftead of one, of the exercife of legiflative authority over Englifli colonies by the Crown alone, though in neither cafe, as I believe, with the perfeft fatisfadlion of the inhabitants fo governed, FRENCHMAN. -,. I am much obliged to you for this account of the claims of the Crown upon this fubjedt, which I perceive to be one of thofe difputable queftions upon which the friends of power and the advocates of liberty may have plau- fibly maintained contrary opinions. How- ever, I (hould incline to think that the de- claratory ad of the year 1766 ought to be confidered as having fettled this matter againft the pretenfiun of the Crown, at leall: with ... .> refpea Conclufion drawn from the declarato- ry ailin 1 766 againft the; fole legiflative authority of the Crown o> ver ths Ame- rican cuio- nics. I ' !l m I! I 1 1 \\4 * [ 200 ] refpedl to its American dominions $ fincc it declares that in all thofe dominions, the pro* vince of Qncbeck not excepted, in which no aflembly of the freeholders had been then, or has been yet, cftabliflied, the king and par- liament conjointly had the power of makin'^ laws to bind the inhabitants in all cafes whatfo- ever. This feems to imply that fuch a govern- ment as was eflabliihed 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 eftabliflied in the province of Quebeck, (though no afiembly has yet been called there) without an a6l of parliament for the purpofe. ENGLISHMAN. I think there is much weiG;ht in vour The faid con- clufion is con< , - . a j v • r j i i firmed by the oblervation. And It is confirmed by what ^ft* ^^^**^^ wc have feen done with refpedt to this pro- vince by the late adt of parliament, whi Ji has given you fo much uneafinefs. For wc learn from it that his Majefty's minifters of flate, having determined within themfehes that no affembly of the people ought to be cilabiinicd [ 201 ] eflahlldicd in this province, but that it ought to be govf^rned by a govcrnour 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- blifli fuch a mode of government here by the king's fingle authority by granting the govern- our a new commiflion under the great fcal 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 aflembly of the people, but called in the afliftance of parliament for that purpofe. Surely this was an acknowledgement on the part of the Crown of a want of fufficicnt legal authority in itfelf alone to delegate thefe powers of legiflation to a govcrnour and council only, without the concurrence of an affembly of the people! FRENCPIMAN. This argument feems to be jufl and flrong. Yet there are two objedions to it which I beg leave to ftate to you, which fecni fome- what to diminifli its force. If thefe can be removed, I (hall look upon it as quite con- clufive. Vol. IL P d E N G- I t^i \ ! [ 202 ] ENGLISHMAN. Pray, what are thofe objedions ? FRENCHMAN. An objcaion Thc firft of them is as follows. You know ing conciii- that our gracious fovereign was pleafed, fooii fromthtkinR's ^^^^^ ^^^^ ceflion of this province to the crown proclamation of Great-Britain by the laft treaty of peace, of Oaobcr, ^ . , , »7^'3. to publilh a proclamation under the great feal of Great-Britain, dated on the 7th of Odober, 1763, in which he promifed the inhabitants of this province the immediate enjoyment of the benefit of the laws of >. England, and that they (liould be governed as to matters of legillation by a govcrnour, council, and aflembly of the freeholders and planters of the province, as foon as the (itu- • 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 pnflefled, of making laws for this province by his fingle authority, or of delegating tlie power of doing fo to a governour and council only, [ 203 ] only, without an aflembly, becaufc fucli a mode of government would be different from that which he had, by his proclamation, pro- mifed to eftablifli here: and that therefore an ad of parliament became necefliiry to revoke and abolifli that proclamation. This, I conceive, may be faid by the advocates for this legillative power in the Crown, in order to get rid of the inference you have drawn againd 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 underflood. But, I imagine, an objedion of this kind may be formed againft your inference j and I (hould be glad to know what you would alledge in anfwer to it. ' ENGLISHMAN. I underftand your objedlion very well j but do not think it of much weight. Fcr, though the proclamation you allude to gives the people of this province an immediate right to the benefit of the EngliQi laws, yet P d 2 it An anfwer to the faid objc<rr tion. The prncls- jnationdidnot promire the immediate cllablifliment of an affem- b!y, but only thatonelhould be fummoned as foon as the circumftances oftheprovince would permit. It therefore did not pre- clude the king fiom making laws for the province be- fore an aflvjm- bly was clla- blilhed in it, if he had a right to GO \o before the proclamation. r 204 1 it does not give them an immediate right to be governed by an aflembly, but only a right to be fo governed as foon as the fiiuation and circiimflancii oftheprovince ivill admit thereof. Until that period di ftnefs arrives (which, in the opinion of the king and parliament of Grent-Britain, is not yet come,) there is no- thing in the proclamation that precludes the king from making laws for the province by his fingle authority, without the concurrence of the parliament, and confequently from delegating to a governour and council only, without an affembly, the faid power of mak- ing laws for it, fuppofing that he was legally polTcllcd of fuch a legiilative power before the proclamation was publifhed. If there- fore the king was legally poffelTed of fuch a legiflutivc power before he publifhed his pro- clamation, he continued to be pofTcfTed of it after t!\e proclamation until the faid fcafon o^ fitnefs for eftablifhing an aflembly in the province fliould be arrived, of which, I pre- fume, his Majefty, when he publilhed his faid proclamation, meant that himfelf (hould be the judge. He might therefore, until the faid feafon of fitnefs, have exercifed the r 205 ] fald legidatlve autliority over this province either in his own pcrfon by making laws for it by his own edids, 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 afliftance 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 pofi'elTed of fuch a legiflative au- thority over this province either before or aftc his laid proclamation. .' : . It is true indeed that there is one branch of the late Quebeck-ad: which his Majefty's fingle authority would not have been com- petent to edablifli in the province, either before or fince the proclamation of Odober, 3763, even according to the dodrine laid down by Lord Mansfield of the legiflative power of the Crown over conquered coun- tries, countries^ cxcq^t that which cflabliflics tlic Reman Caiholick Therefore the foregoing conclufion re- mains in the fame degree of force as if there had been no proclama- tion. . j». -,t(t»' '1 There is no provifion in the Qucbcck- ad which might not liave been ertabliflied by the fingle au- thority of the Crown ac- cording to the doftrine of its folc legiflative power over conquered Kiligion.^ tl I t I TO. 1 Ik 'I m 1:1 \'. <-• I ■.»'■» ,; •• '.I it ,• ' « ' ■• ■ ,,1 .■>--,, TTiat provi-" Son could not have been made without an aft of par- liament, be« canfeitis con- trary to the fiatute of fu- premacy in the III of Q^ Elizabeth. [ 206 ] tries, and which other crown-lawyefs have extended to colonies, or planted countries as y/t\\ 2ls conquered onQS; 1 mean that branch of the faid ad which relates to the eftablifliment of the Roman-Catholick religion in the faid province, or which gives the priefts a legal right to their ecclefiadical benefices and tythes, and laymen a right to hold places of trufl and profit, without taking the oath of fupremacy, and requires them to take a certain new oath of allegiance in its (lead. For this branch of the faid a£l is contrary to the flatute of the ift of queen Elizabeth, which exprefsly relates to the future domi- nions of the crown of England as well as thofe which at that time belonged to it: and Lord Mansfield allowed that the king's legiflative authority over conquered countries was reflrained by all fuch antecedent a(fls of parliament as were exprefsly declared to extend to them. It would therefore have been neceffary, when his Majefty's miniflers 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 • ^ necefTity [ 207 ] n€ceffity did not arife from the proclamation,' and did not extend to any other fubjedl con- tained in the Quebeck-a6t, belides this of the abolition of the oath of fupremacy, there being no other provifion in it that is contrary to any antecedent ad of the Englifli parlia- ment that exprefsly relates to that province. If therefore the king had poflefled a legal right of making laws for that province in all other refpeds, and upon all other fubjeds but that of the abolition of the oath of fu- premacy, it v^^ould have been fufficient to make an ad of parliament for the regulation of that fingle fubjed 5 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 affembly, the power of making laws to bind its inhabi- tants; but thefe things might have been left to be fettled by his Majefly's fingle authority by his edidt, or proclamation, or other fufficient inftrument under the great feal. But it was thought proper on that occafion to infcit thefe claufes in thefaid ad of parliament, and, amongfl them, the claufe But the othcK provifions of the Quebeck- ad might, ac- cording to the aforefaid doc- trine, have been made by the fingle au- thority of the Crowa« Neverthelefs it was thought proper to in- fert them in the fatd a6i of parliament. ' Srf mm ' ! ^. I ■■M!t?i'. , isi Ai I true. r 208 ] claufe for vefting a legiflative authority In Therefore the the govcrnour and council only. We may king's mini- , >. 1 i 1 • 1 Iters mufi have therefore conclude that it was the opinion the"faid doc- ^^ ^^^ Majcfty's miniftcfs of ftate and ad- trine was not vifers in the bufinefs of the faid Quebeck- a(5t, that his Majefty was not pofTefied of a legal right to regulate all thofe matters by his lingle authority, and, more efpecially, to delegate to his governour and council only, without an aflembly, 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 arife from the promife contained in the proclama- tion of Odlober, 1763, of eflablilhing an aflembly in the province 3 becaufe this pro- mife was not to be immediately accompliflied, but only as foon as the ficuation and circum- ftances of the province would admit thereof \ until which feafon of ripen efs for fuch a meafure, we muft prefume that the new laws and regulations, that might become necefl^ary for the good government of ths province, were intended to be made by that perfon, or perfons, who had a legal authority to make them before the faid proclamation ifllied. [ 209 ] i^Tued. It follows therefore that this want of legidative authority mud: have been deemed by the advifers of the Quebeck-a<^ to have been originally inherent in the Crown before the proclamation of Odober, 1763. This, I hope, is a fufficient anfwer to the objedlion you have dated to my above-mentioned in* ference, on the ground of the royal procla- mation of Odober, 1763. FRENCHMAN. I am pretty well fatisfied 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 fhould elapfe between the iffuing of the proclama- tion of Odober, 1 763, and the time at which his Majefty fhould be of opinion that the iituation and circumftances of the province did admit of theeftablifhmentof anafTembly, it might become neceflary to make fome new laws and regulations in the province; and confequently we mud prefume that his Majefty forefaw this neceffity, and meant that fuch laws (hould be made. The only remaining queftion feems to be, by 'whom he Vol. II, E e intended m V [ 210 ] Intended fuch laws (hould be made ? and the natural anfwer to this queftion, (fo far as it can be colledted from the bare perufal of the proclamation itfelf,) fcems to be, that he intended that they (hould 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 %o 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, notwithflanding the iitu- ation and circumftances of the province did not yet admit of the eflablifhment of an aflembly in it, they were confcious that the king alone was not pofTefled of a legal right to do fo. But what daggers me a little on The judges of this occafion is, that it feems to me, from the Court of what you related to me of the judgement in England of the couFt of King's Bcnch in England in S. ""[nX *^^' ^^^^ o^ Campkll and Hall relating to the cafeofcamp. duty of four and a half per cent, that had bell and Hall, ' * that the royal ' . * bccn proclamation of Oflober, 1763, operated as an immediate bar to theexer- cife of the powers of legiflation in the four new governments by the fiagle authority of the Crown. [ 211 ] been illegally colledted in the iiland of Grenada j I fay, it feems to me from your account of that cafe, that Lord Mansfield und all the other judges of the court of King's Bench were of a different opinion from us with refped to the time at which the proclamation of Odlober, 1763, began to operate as a bar to the exercife of tho king's fole legiflative authority, fuppoUng him antecedently to have been pofTeffed of fuch authority. For, if I remember rightly the dates of the publick inflruments relating to the iiland of Grenada, the letters patent impoiing the duty of four and a half per cent. were publilhed in July, 1 764 j and the com- miffion of governour Melvil, to be captain general and governour in chief of that idand, (whereby, amongft other things, he was impowered to fummon an affembly of the freeholders and planters of it,) had pafTed the great feal in the preceding month of April, of the fame year, 1764; but the firft affembly 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 of Ee ;5 • four If ! J' t 212 ] four and a half per cent, and more than two years after the publication of the procla* mation of Odlober, 1763, which promifcd the people of Grenada, (as well as thofc of the province of Quebeck and the two Flo- ridas,) a government by an aflembly, (not immediately, but) as foon as the fttuation and circumftances of tte /aid new governments would admit thereof. Here, therefore, was an interval of more than two years after the publication of the proclamation in Odober, 1763, before the affembly of Grenada met, during which, according to your way of reafoning, die king was not precluded by his proclamation of October, 1763, from exerciiing his legiflative authority in the ifland of Grenada, in the fame manner as before the faid proclamation was made, fup« poiing he had, before that ad, been legally pofTefTed of fuch authority: and in the former half of this interval, namely, in July, 1764, his Majefty did exercife this legiflative authority by ifTuing thofe letters patent which impofed the faid duty of four and a half per cent. Thefe letters patent therefore, according to your dodrine, muft . I - have [ 213 ] have been legal, ^vhen they were liTued, if they would have been fo before the faid proclamation of Odlober, 1763. But the judges of the court of King's Bench in England have declared juft the contrary, to wit, that thofe letters patent were illegal at that time» becaufe they were poderior to the faid pro- clamation, though they would have been, or, perhaps, might have been, legal, if they had been ifTued before it. Have you any way of reconciling this opinion of tho^ learned judges concerning the immediate operation of the king's proclamation of 0£to« her, 17639 as a bar to the exercife of his antecedent legiilative authority, with your own method of rcaibning upon it in the caie of this province of Qijebeck ? or am I re- duced to the necedlty of adopting one of thefe opinions in dire^ oppofitipn to the other? : ENGLISHMAN. .: Truly your difficulty feems to be very well founded: nor do I know how to reconcile thefe contrary opinions concerning the time at which the proclamation of Odober, 1763, ought to be conlidercd as a bar to the exercife of «n ^iS'.l.: t: r 214 ] of the king*s legiflative authority. I cannot therefore exped that you (hould adopt my manner of interpreting that proclamation in oppofition to that of thofe learned judges. But, as to myfelf, I mud dill retain my own opinion, not with (landing it is different from theirs ; becaufe the judgements we form upon fubjedts that lie within the reach of our underdandings, and which we have fully confidered, do not depend upon our choice, but are the necedary ededts of the impredions which the reafons that have been odered to our confideration concerning them, have made upon our minds $ and I do not recoUedt that any reafon was given by thofe learned judges to diew why the king mud be underdood to be precluded by that proclamation from the exercife of his antecedent legidative au- thority over the ifland of Grenada tluring the interval that diould elapfe between the time of iduing it and the time at which his Ma- jedy, in his royal wifdom, fhould think the iituation and circumdances of the idand to be fuch as to admit of the meafure of fum- moning an adembly of the people 5 I fay, I do not recoJed that any reafon was given to i^j [ 2'S 1 to Hiew this, except the fingle circumAance of the want of an exprefs claufe in the faid proclamation of October, 1763, to referve the legiflative authority over the faid new governments to the Crown in the faid interval before the intended affemblies of the people could be eftabiifhed, which I mud confefs I did not think a fufficient reafon to warrant that conclufion. However, I will confefs that this difference of the opinion of thole learned judges '^j'*? ofmM from my ftwn upon this fubjecc, (which, in of thcKing'j truth, I was not aware of till you mentioned fh^foregotng it,) makes me diffident of the juftnefs of my ^l'!^*'' *° **^« c rj • • L t. • 1. •'^ faid firfi ob- own way of conudering it, though it has not j^^aion ver^ intirely made me a convert to their opinion : ' and I therefore lay much lefs (Irefs than I did at firfl, on the inference I drew from the application made to the parliament by the king's miniflers, when they recommended the paffing the Quebeck-a<5l, for the purpofe of veding a legiHative authority over the province of Quebeck in the governour and council only. But, I think, you faid you had another objedtion to that inference, which you wiihed me to confider. Pray, what was it? FRENCH-- I 216 ] ^ FRENCHMAN. / ,, A fecond ob- That Other objedion to your inference jedtion to the * , 1 1 i_ j aforefaid in- was groundcd OH the government that had ference. infa^ been eftabliftied in the province ever lince the laft peace to the ift of laft May, 1775, when the prefent Quebeck-ad took place. For during all that time this province was governed by a governour and council only, without an afTembly of the people, by virtue of the king's (ingle autMbrity, and without an adt of parliament to authorize ;^ that mode of government: and the go- vernour and council exercifed a legiflative authority in the province in various inllances, as you well know, many ordinances having been made by them during that interval. Now the condudt of the Crown in thus cfta- blifhing in this province a government by a governour and council only, without an affem- bly, for the fpace of between i o and 1 1 years, (namely, from Auguft, 1764, when general Murray's commiffion of captain-general and governour in chief of this province was firft / publi{hed in the province, to the ift of laft May, when the Quebeck-adl became of force in [ 217 ] in it,) feems to preclude the inference, which you have drawn from the claufe in the faid Q^ebeck-a<^ which edahlifhes this kind of government, of aconfcioufnefs in his Majefty's miniflers of (late of a want of a legal righi: in the Crown alone to eftablifh this mode of government. For, if they were confcioujs of fuch a want of legal authority in the Crown> why did they advife his Majefly to exert fuch ^n authority before the pafling of the Q^r- beck-adt by delegating to the governour and council only, without an aifembly of the people, the power of making laws to bitKJL the province ? or was no fuch power deter gated to them by the Crown, though they took upon them to ad: as if it had been ib? in which cafe the feveral ordinances made by them before the operation of the Quebecki- ^&, muft have had no legal validity. • « ^^^1 jiH ..;,., ENGLISHMAN, ^i-n^t,^ this is a very fair and natural objedtion to the inference I had drawn from the C^aebeck- adl, arid Well deferves to be confidered. But I believe I {hall be able to anfwet it in a manner that will pcrfcdlly fatisfy ybu, by Vol. II, F f explaining ''I .( U' v^ ■ I i: :: >■■ An anfwer to thefaidfecond objection. explaining to you the true ftate of the fadt upon this fubjedt during the ten or eleven years you fpeak of, which I perceive you are not fully acquainted with. The fad is as fblbws. W > ! -^ In the commiffion of captain-general and governour in chief of this province granted by his Majefty, under the great feal of Great- Britatin, to General Murray in the year 1 764, there is a claufe impowering the General to fummon an aiTembly of the freeholders and planters of the province as foon as the fitu- ation and circumftances of the province « admit thereof, and, with the confent of luvh aiTembly and of the council of the provinoe, to make laws, (latutes, and ordinances for the peace, welfare, and good government of the fame* But, though it is certain that his Majefty was not then, and, as it iince ap- pears, is not yet, of opinion that thefituation and circumftances (^ 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- miffion to impower the governour, in the , , , vmn T 219 ] ffiean 'while and until fuch affemUy Jhould be fummonedy 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 legiila- tive authority to the governour and council only, if the Crown was legally poflefled of a right to make fuch a delegation, fuch high powers being incapable of being legally transferred from the fovereign to any of his fubjeds in any other manner than by an inftrument under the great feal. This omiflion, therefore, of a claufe for this pur- pofe in the governour's grand commiflion 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 affembly, 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 legiflative powers to the governour and council only, but rather like a tacit acknowledgement of the want of 4uch a right. Ffa What I ,« Ofthelegifla- tive authority excrcifed in the province of Qucbeck before the late Qufcbeck-aft. t ZtO ] What then, you will afk, ccJld be the defign and intention of his Majefty's mmifter$ on this occaiion ? Did they imagine that the province might be governed for ibme con- iiderable time, (namely, until it fhould be expedient to fummon an alTembly,) without ipaffing any laws or ordinances at all ? — Or, if they did not think this pradticable, but intended that fome ordinances (hould, from time to time, be paiTed in it, as occaiions might require, by whom did they intend that fuch ordinances fhould be made ?— « The proper anfwers to thefe queflions I take to be as follows. His Majefly's minifters did not fuppofe that it would be poilible to govern the province without paffing any new ordinances af all in it, as occafions might require, before an affembly (hould 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 fubjedts of fmall importance, fuch as what you Frenchmen call reglemenh. de police y or regulations relating to publick conveniency and decorum, without meddling with the criminal law in its higher branches, t 221 J fo as to dTed): the lives 6r limbs of his Ma? jefty's fiil^^s in the province, or their right to perfotial liberty, and without n^aking free with their property by the impofition of any duties or taxes. And with this view his Majefly thought fit to delegate to general Murray, the governour of the province, by a private inftrudtion under his iignet and fign- manual, the following very limited legiila- tive authority, to be cXercifed 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 Jhould appear to be necejjary for the peace^ order ^ and gobd government of the Jaid province -, taking care that nothing he pajfed or done that Jhall any ways tend to affedi the life, limh^ or liberty of the fubjedty or to the impofmg any duties or taxes. This legiflative authority, you plainly fee, was very (hort of that which had been communicated to the governour by his commiflion under the great feal, to be exercifed in conjundlion with an aflembly of the freeholders j which was to make laws, Jiatutes, and ordinances for the publick peace, welfare. A certain very limited legiH* lative autnO' rity was dele- gated to the governour and coundl, without anaf- fembly, by an inftruflion under the king's iignet and fign-ma« nual. J' 'i- r ! : !i^: Conclafion drawn from the conduft of the Crown in delegating the faid legif- lative autho- rity by an in- ftruflion. X 2124 ] ml/are] and good government oj the fatd frovince^ and this without any fueh reftric- tions as thofe above-mentioned with refpeiSt to the impofition of duties or taxes, or to the pafling fuch laws as might affedt the live?, or limbs, or liberty of his Majefty^ fubjedts. 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-adI:. And, if you refled on the fmail extent of this authority, and the private, im^erfedt, 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 mud 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 fliift without it for a fliort time, by a tender and cautious ufe of a very limited legiflative [ 223 1 legiflative power of a doubtful nature, and which could be juftified only by a kind of feeming tertiporary neceflity of having re- courfe to it during the interval of time that- might elapfe before his Majefty (hould judge the fituation and circumilances of the pro^ vince to be fuch as to admit of the fummon- ing an aifembly. I therefore am fatisfied chat it ought not to operate in any degree a$ 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- ti{h parliament, on the occafion of the late Quebeck-ldl, 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 linimpeached, fup- pofing the proclamation of Odtober, 1763, did not operate as an immediate bar to the exercife of any legiflative authority in the province without the concurrence of an aflembly, .V' i iH \ \ t "4 i ji&mbiy, but left the Crown at liberty to aA according to the powers it had legally polfefTed before, during the interval that fhould elapfe before the fituation and cir- cumftances of the province (hould, in his Majeft/s opinion^ admit of the efl;abli(hment of an afTembly. But this, we muft remem- ber, the judges of the King's Bench in Eng- land have unanimoufly determined aga'nft us. Of the nature of inflruCUons to governours of provinces iinder the king's fignet and fign-ma- littal. Si' I But, before we take leave of the fubjedt we have been juft now confidering, I mean, the political fituation of this province before the late Quebeck-ad, I muft trouble you with a queftion that occurs to me concerning the king's inftrudtions to his governours of his American provinces. Pray, is it under- fiood that any powers whatfoever, even fuch as Bfc legally veiled in the Crown and are capable of being legally delegated by it^ can be legally delegated by an inftrtidtion ? For it feems ftrange to me that they fhould be £), feeing that inflrudions are things of a private nature, that feem intended to regulate the condudt of governours in the ufe of the high powers that are veded in them by their .... publick r 22i ] publick commiflions, rather than to be the inftruments by which fuch powers are con- veyed to them. ENGLISHMAN. Your conception of this matter feems to me to be perfectly juft. InftruAions to' govcrnours can convey no powers to them whatfoever, but are only to be confidered as dircdlions to them how to ufe the powers which are conveyed to them by their com- miHions, and are intimations of his MajeAy's refolution to remove them from their go- vernments and appoint other perfons in their room, in cafe they fhail ufe thofe powers in a different manner from that which is pointed out by their inftrudtions. 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 inftrudtions, (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 refpedt to the inftrudljons given Vou II. G g to ;i. ,1- KiT m ' w Ml t. i ^ 1 1! I No written in- ftroment can legally convey any powers of government, unlefs it be madepublick. The proper inftriiments for this pur- pofe in the Englifh go- vernment arc comnuiuons under the gieat Teal. [ 226 1 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 a<fls that are to be done in purfuance of them. For how elfe fhall the fubjeds over whom the perfon intruded with fuch powers is to prefide, know that he is to be their governour, or in what re- fpeds, 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 governour^ that furely will not be fufHcient to intitle him to their obedience -, but they not only may, but ought to refufe to obey him till he produces fomc 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 purpofc in the Englifli government is a commirilon under the great feal of Great- . Britain, [ 227 ] Britain, the authority and importance of which feal is To highly protedted by the law of England that it is the crime of high treafon, and punifliable with iofs 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 commiflion fo authenticated that a governour of a province can intitle himfelf to the obedience of its inhabitants. .., -» cified in tlieir commillions : And further, when fuch a commlflion is Governours produced and publiQied in a province, fo as have a legal to give the people of it a fatisfaftory aflur- ^f ^^^yS ance that the perfon who produces it has powers of go- been appointed by the king to be their go- which are fpe vernour, they are only bound to obey him in the exercile of fuch powers a& are con- veyed to hini hy the commiflion, 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 fome perfons imagine a go- vernour of a province to be the full ajjd gateral reprefentative of the king's majelly, and to be legally capable of exerciling £^ll the a(5ls of authority in the province which G g 2 the '\^ A general repre ientatives of the king. t 228 ] the king himfelf might lawfully exercife, if he were prefent there in his own perfon. And^are not g^j jj,jg jg^ undoubtedly, a very miftakcn notion, becaufe the king never delegates to any of his governodrs of provinces the whole of his royal authority, but fpecifies in their commiflions the powers he intends they fhould 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 commiflions to his governours, " that he gave them full power to adt in t! w'ir refpedlive 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 lead I 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 commiiHons tu his governours of provinces, but, on the contrary, fpecifies, at confiderable length, in thofe conpmiflions, the particular powers he intends they fhould exercife in their refpedive provinces, *>. • [ "9 ] provinces, and» with refped to Tome of thofe powers, exprefsly redrain^ his governours from exerciiing them in the fame extent as he himfdf might do -, as, for indance, in the power of granting pardons to criminals, they being ufually retrained by the words of their commiiTions 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 commiiTions mud be allowed to belong to the governours to whom the commiirions are granted ; and the ads done by the governours in the execution of thofe powers mud be fubmitted to as legal : and all other branches of the royal authority befides thofe which are fo fp reified, muft be fuppofed to have been referved by his Ma- jefty to his own perfon, and not to have been delegated to his governours. i^ M ^ii.i ■ti And ITH if the king were CO make hisgovernours of provinces his full and general repre- Kntatives, it would be at> tended with great incon- veniences. [ 230 1 And indeed it is a mod prudent and judi- cious pradlice thus to exprefs in the com- miflions 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 reprefentatives of their fbvereign, (as I have known fome people confider them,) with all the power which the king himfelf would lawfully poffefs, if he were prefent there in his ' own perfon ; becaufe, if this were done, it would give occafion to num- berlefs difputes and difHculties 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 extenfive than the people under their government would be willing to allowj all which difputes are happily avoided by the prudent pradice of fpecifying in the com- miflio.ns themfelves the powers which are intended to be delegated to the governours to whom the commilTions are granted. It [ 231 1 It feetns reafonable therefore to conclude upon the whole, that a governour of a pro- vince has a right to exercife juft fo much of his fovereigns royal authority as is fpecifi- cally delegated to him by the words of his commifHon under the great feal, and no more 5 and that every other delegation of the royal authority to him by any inftrument not under the great feal, is illegal and void, even though the power fo delegated (hould be fuch as the Crown has indifputably a legal right to ; and much more, therefore, in all other cafes. M 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 dodtrine, the king's inflrudtions 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 ufe of the powers which are legally delegated to them in their commifiicns The king's in- (Irudions un- der the fignec and iign-ma- nual cannot: legally ope- rate To as ei- ther to en- large or re- train the powers of go- vernment contained in the govcrn- cur's com- nuilion. f*! n M; m J. •,'1 : '■, d . -i W'- [ 232 ] commiffions under the great feal, fo as to make thofe adts become illegal and voidj which are done agreeably to fuch powers given in the commifHons but in oppofition to the faid inftrudlions. Thus, if the king, in his commiflion under the great feaU gives his governour a general power to grant any lands in the province upon the ufual condi^ tions ; and, in his private inflrudions under his fignet and fign-manual, dire^s him to forbear making grants of fuch and. fuch par- ticular trads of land, which his Majefly chufes to referve to himfelf; and the go- vernour, notwithftanding fuch inftrudion, makes a grant of land in the faid excepted tradts ; fuch a grant will be valid by virtue of the general power of granting lands con- tained in the commiflion under the great feal, notwithftanding the exception of thofe particular tradts of lands contained in the private inflrudtion. And, in like manner, an adt done in purfuance of a power con- tained in an inftrudtion, but not in the com- miflion under the great feal, muft be con- iidered as illegal and void. This, if I un- derftand you right, is your opinion upon this fubjcdt. ENG- r 233 J ^'l! • ■ 4.!.- ENGLISHMAN. It is exadly fo. ^^ .. ^ i FRENCHMAN. 1. » 4 r 4 . .X ' 1 But I have been told that an opinion has Ofadaufein * the commif- prevailed amongft lome governours of pro- fions of go- vinces and other fervants of the Crown, that provinces," the inftrudions given to governours under which refers the king's fignet and fign-manual are of equal ftruaions. authority with the commiflions under the great feal, and that there is a claufe in almofl every governour's commiffion which refers to the in(lru6tions, and, as it were) adopts them into the commiAion, and makes them partake of its high legal anthority derived from the great feal. Pray, do you know of any fuch claufe in the commiflions ufually given to governours of provinces ? and do you con-p cejve that fuch a claufe can have the efFedt aicribed to it ? For to me it appears a very indired and whimfical way of proceeding. . ,1 ,1 uJ Vol. II. Hh •>-r* I^- w> ENG- [ 234 J r'lS-'i; ENGLISHMAN- There is in fome of the commiflions to governours of provinces, and perhaps in all of them, fuch a claufe as you fpeak of. In the commiflion to Sir Danvers Olborne to be governour of New-York in the year 1754 The wotds of jt [$ expreffed in thefe words. ** Know you tfrefaid claufe. . ___ . /. . , n ^ " that We, repoung elpecial trult and con- ., r,. , *' fidence in the prudence, courage, and loyalty of you, the faid Sir Danvers Ofborne, of our efpecial grace, certain f* knowledge, and meer motion, have •* thought fit to conftitute and appoint you, •* the faid Sir Danvers Ofborne, to be our captain-general and governour in chief in and over our province of New- York and the territories depending thereon in Ame- rica ; and we do hereby require and command you to do and execute all things in due manner that ihall belong unto your faid command and the trufl we have repofed in you, according to the " feveral powers and directions granted or appointed you by this prefent commiflion " and <c <c cc cc <c cc cc cc cc cc cc [ 235 1 « « " and inftrudllons herewith given you, or The words of " 6y fuch further powers^ tnjtrumons^ and the inftruc- " autboritiesy as Jhall at any time hereafter **°°'v .7'»' " be granted or appointed you under our ftgnet and ftgn-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 (hall be made and " agreed upon by you, with the advice and i - " confent of our council and the aflembly " of our faid province under your govern- " ment, in fuch manner and form as is " herein after exprefled." And there is a claufe of the fame import, and exprefled 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 poivers, inJlru51ioj2Sy and authorities y as Jhall at any time hereafter be grafited or appointed you under ourfgnet andfign-manualy^ are thofe to which you allude, and which have been fometimesalledged as a pr-.^cf that H h 2 the • :>?' EL-i •;:. . \wh\ i^ 91 !• f %. An infereocc that has been fometimec drawn from thefaidclaufe. Tendency of the faid infe- rence to un* dermine the authority of the great feal. [ 236 } K the inftru(3ions given tp a governour under the king's Tignet and iign-manua) s^re of equal weight and authority with the powers contained in his commiiHon under the great feal, (or, as the perfons who argue in this manner feem to conceive,) partake o^. l;he authority of the cop^mifHon under the great feal by being thus referred to by it. But this is in my opinion a very abfurd and per- nicious way of reafoning, and has a tendency to undermine and deftroy the authority of the king's great feal, which is the peculiar inftrument by which the law of England has appointed that, in all great and folemn ads, the regal power (hall be exercifed. For, \i Jome additional powers, beyond thofe which are expreffed 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- miffion, why may they not all be fo dele- gated, and the commifTion be reduced to this one fentence, " We do appoint you our captain-general and governour in chief of fuch a province, with fuch powers as we .:; A i (hall [ 237 ] (hall hereafter inveft you with by our m- flrudtions under our fignet and fign-manual ?" But, if this were done, it is evident that the commifHon under the great feal would no longer be a real and effedtual commifHon, delegating powers of government to the go- vernour to whom it was given, but would be a mere nominal commiilion, which could only operate as a grant of the title of go- vernour of fuch a province, as a title of honour ; and the inilrudions would in truth be the commiilion, or important indrument by which the powers of government would be communicated to the governour ; that is> an inflrument under the king's iignet 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 z province cannot legally be delegated to him in this manner by an inflrument under the king's fignet and fign- manual : and confequently, fince the fame rcafon holds againft the delegation of any one power of government in this manner as againrt: that >,:« ;t U m l':'v'. M 'ft- '|t Hi !:< • f «38 ] CJonciofion a« that of any other power, we may conclude gainftthefaid . ^ ^ / ^ . 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 inflrudtions under his fignet and (ign-manual, and likewife all at- tempts to reftrain by fuch inftrudlions the full exercife of the powers legally delegated to a governour in his commifiion under the great feal,'are illegal and void. This, at leaft, is my opinion beyond all manner of doubt 5 and therefore 1 look upon thofe words to which you alluded in the commiffions of many governours of provinces, to wit, " by fuch jurther powers^ inftruBions^ and autho- rities ^ asjhall at any time hereafter be granted or appointed you under our fignet and Jign ^ 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 excr- cifing and delegating the great powers of the Crown by inftruments under the king's fignet syid fign-manual, inftead of inftruments un- der that more folemn, important, and antient feal which the law has always recognized as : . ^'-'- ■ the \ . iclude an be ill the ovcrn- Icr his all at- ms the legated ier the 'his, at incr of e words lions of it, " by I autho- granted md ftgn a legal ding to of the lf exer- of the |s fignet nts un- antient ized as the [ 239 ] the true teilimony of the full and deliberate exertion of the royal authority, and has accordingly protected by the fandlion of the higheft penalties. And therefore I mod heartily wi(h that thefe words, or, at lead, the two words powen and authorities^ and the word granted^ which refers to them, were to be left out of all the commiHions which (hall hereafter be granted to his Ma- jefty's American governours. , , ,, It woald be right to leave out the faid words of re- ference to in- ilru£lions in all future commiflions to governours of provioccs. \ flrange that they were ever inferted in the com"- millloos. «.-. FRENCHMAN. " I intirely agree with you in thinking that they ought to be left out of the commiflions, It f--mi and cannot but wonder that they have ever been inferted in them. For I cannot con- ceive what objedion the kings of Great- Britain, or their minifters, can ever have had to the fpecifying in the mod ample manner in the commiflions given to the governours of provinces under the great feal, all the powers they intended the faid governours (hould exercife. This would have at once- removed all doubts and difHculties that might arife concerning the legality of the delega- tion of thofe powers, and would have been > tai ' rf as . .:»:v-v.'-l w . Tf , '1 I v: V I' ' i J'- !^:,r m 'It !.<.! "■ i i ; ji"i [ 240 ] A8 (hort and eafy a method of^ conveying them as the other by the (ignet and fign- manual, and, in my apprehenfion, more . fuitable to the dignity of the royal charadler ; becaufe, the higher is the degree of authen- - - ticity with which the king's a£ts of (late are ...> tranfa^ted, and the more folemn and formal the manner of tranfadling 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 (hould ever have entered into the heads of the king's minifters of (late to advife his Majefty to attempt to delegate any powers of government to his fubjedts in any other way than under the great feal : and 1 beg you would let me know what you think may have been the motive that has given occafion to fuch a proceeding. ENGLISHMAN. A conje£lure concerning the reafons that may have i)een the oc- ferting them I conjedure that the reafon of it may have in the com- Uo«n Truly I have been as much furprized at this pradice as you can be: nor do I know any certain way of accounting for it. But f ?4« 1 been as follows. The great feat of Great- oj *? "^""J ° ^ character and Britain is kept by a great officer of ftate called qualifications the Lord Chancellory or T.nrd keeper of the chanccHors, great ftal, (for they are precifely the fame ^[]°'^f ^h^ officer under different titles j) who is gene^T great feai, of rally fome very eminent and learned lawyer, bred to the profeffion of the law from his youth, and much (killed in the pradtice of it, and deeply verfed alfo in the civil hiftory of England and the conftitution of its p;overn- ment, or that part of the law of the kingdom which relates to the diftribution of the fevcral powers by which it ought to be governed, and the forms and folemnities with which thofe powers ought to be adminiftered, And it is underiiood 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 'himfelf that it con-r tains nothing but what is agreeable to Jaw and juftice before he puts the feal to it, And, if he puts the feal to any inftrumcnt that is contrary to law, or which, though agreeable to law, is manifeftly contrary to ih^ welfare of the kingdom, he is liable to he puniftied for fo doing by the judgement • '. i\ I ' I' M-, (.:f , »■ •^ ' ^• ],: , ?/:*.' > in li '' W ii t 242 ] ' ' ' '^ of the Iloiife of Lords in confcqucncc of an ., . impeachment, or accufation, preferred againil him before then\ by the Houfe of Commons, and alfo, I believe, in the firll cafe, or wheis / he puts the fcal to an inftrument that is con- trary to law, to an ad^ion at law at the fuij of the perfon who is injured by means of fuch illegal inftrument. Thcfe dangers, at- tending the abufe of the great feal, make it diflkult for the Crown to do illegal aifls under that fandion : ' becaufe the lord chao* cellor, from his knowledge of law and hiftory, his habits of examining matters of ftate with care and caution, and furveying all their relations and confequences, will not eafily be brought to ufe the great feal for J^llj'^j'Ji,^"; fuch purpofes. But the cafe is otherwife and fpirii that with refpedl to the king's lignet. The in- prevails 00 amongii the flruments executed under the king's (ignet k tarjcs ir"ies^offtate! ^^^ counter-figned by the king's fecretaric« 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 other perfon who, from his education and ftation in life, may be fuppofed to be acquainted with the law. For, as to the •■' . * ' • fecretaries [ 243 ] fccretarics of ftatc, you certainly muft know as well as I do, that they are ufualiy 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 fubjed as the law. Perfons of this defer iption, when they arc placed in ftations of authority, are much more likely to advife their Ibvereign 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 confidcr as narrow pedantick rules which it is below their dig- nity to fubmit to, and, like Achilles in the charader given of him by Horace, '^iira negant fihi nata^ nihil iion arrogant armii. They are therefore fond of the dodrines of reafon of Jlate^ and Jlate ncceffity^ and tbd impojjibility of providing for great emergencies - -....,.;. I i 2 , anJ '? A. f:^'i 1 1 1 ■ " 1 1 1 'l 9 * <1 m ^' .... h^M • "'l ^I'il 4^ \ mm m 1 ( t :'J ( m / 1 ! 1 Hi ' if "11 i ' m H\ M \ ::m f ■ 1 ^i ' 1 ^. Js ; 1 1 r t .. ■ i'' ■ ■ /I i i- If ■ v, 1 * f-'\. 1' ;' ltt lil i'^K lim 4:1 1 ^mm i;lJlij mm " if ill i! wm ^mt t 244 ] mJ extraordinary cafeSy without a difcretmdry potver in the Crown to proceed fometimes hy uncommon methods not agreeable to the known forma of law, and the like dangerous and dcteftable politions, which have ever been the pretence and foundation for arbitrary power. I do not mean that all fecrctarics of ftate are of this way of thinking : for undoubtedly fome of thofe minifters have been men of a different charadtert but there have been, ^as I believe, enbugti'of that difpofition to warrant me in faying that it is the generial fpirit and complexion of the office. Nor would it be difficult to find proofs of this extra-legal, or tzxhtt fupra^ legal, difpofition in the powers they have afiumed to themfelves without any clear warrant of law for fo doing, and in the manner they have exercifed thofe powers thus unwarrantably aflTumed : 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- tion of all England. That gentleman had ingMrWUk"; ^'^"i^^"' (^^ 1 ^^ould rather fay, was fup- inApni,i763, pofed to havc written j for it was never by a general * w^iirrain ifiued prOVed by the Earl of Halifax, one of the king's fecrctarics of flatc. / n account of the arrefting r MS 1 prored upon him ;) a political paper calledl the North-Briton, N^. 45, in the month of April, 1763, foon 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 paflage that gav€ 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 publiihing the faid feditious paper, or libel; ..nd he was ac- cordingly arretted, and all his papers of every kind were feized, by virtue of a warrant liTued 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 warranty which did not mention Mr. Wilkes's name, but impowered the meflcnger to arreft the per- fbns (whoever they might be) who had been concerned in writing and publilhing the faid feditious paper, called the North- Briton, Number 45. This omiftion of Mr. Wilkes's name made the warrant utterly . ■ illegal. ; '-': ; t'^ll- 1 I i I VA- )\ ¥^^ ' *■ m Ml ' "„', 1 ; n '?if \'Vlf [ 246 ] • ThefaUwar- illegal, bccaufc it fcquircd the king*s meC- jii. ienger (who was a mere minifterial officer, or rather who aded as fuch) to do that which was the bulinefs of a judicial officer, or nia- giftrate, that is, to exercife an ad of judge- ment of an high nature by dcteraiining who were, and who were not, concerned in the commiffion of the offence in queftion. This was an ad of judgement of fo important a kind that even a magiftrate ought not, ac- • cording to the maxims of the EngUfli law, to have ventured to do it without having received an information upon oath from fome credible witnefs, that fuch, or fuch, a perfon had committed the offence ip queftion, to be a ground for his ordering him to be ar- refted ; becaufe, if magiftrates had a pov^^er of arrefting men wir! jut fuch previous ir- formation, and merely upon their own fufpi- cions, or pretended fufpicions, they might caufe any perfon, how innocent loever, to be thrown into prifon whenever they thought fit. And much lefs can a mac^iftrcUe delei^ate luch a power of detcraiining who is the perfon that has committed a panicuLir offence, to a mere miniilerial ciiicjr ui ji.lli'.e, lueh as ii I I, \ r 11.-:^,^ g's meC- l officer, lat which ■, or ma- of juiig£- ning who ed in the on. This iportant a t not, ac- igliQi law, DUt having from lome h,a perfon ueftion, to to be ar- d a power Irevious ir- own fufpi- |hey might loever, to |cy thought ,te delegate the per Ion jffcncc, to .e, iucii as th.^ t 247 ] ' • the king's meflenger 5 which is done when- ever a general warrant is iffued. This gene- ral warrant therefore iflued by Lord Halifax was clearly illegal, and confequently the ar- reft and imprilbnment of Mr. Wilkes in purfuance of it were illegal likewife, and became a juft ground for an adion at law at the fuit of Mr. Wilkes againft Lord Halifax, the fecretary of ftate, for a falfe, or wrongful, imprifonment of him : and Mr. Wilkes did afterwards accordingly bring fuch an adtion againft him in the court of Common-Pleas in England, and did recover, by the verdidt of a jury, a large fum of money as a com- pcnfttion for the damage he had wrongfully liMtaincd by fuch imprifonment. It mufl reverthekfs be acknowledged, in juftice to the late Lord Halifax, that, though he iiTued the faid general warrant, he was not incited to do fo by the haughty fpirit which I have been juft now defcribing as too apt to influence the great men who fill thofe offices, but was himfelf rather inclined, (from his own natural good fcnfe, and, as we may fup- pofe, the moderation of his temper,) to in- fcrt Mr. Wilkes's name in the warrant, but i. If Mi-. Wilkes afterwaTd-s brought an aftion of falfe imprifonment againft Lord Halifaxon ac- count of this arreft, and re- covered a large fum of money as a coinpenfatioa ibr it- was f ■ •■ t:j? i'ii It r:\'( ! H rl 1 I ■ 1-: i ' 11 m ' ■ ai liC Thcfe general warrants, (though ma- ifttfeiUy ille. gal,) had been vfiiaUy ilTued by fecret-iries of ftate tor an 'iund;:i:dypar» belbf^. The faid prac- tice (hews the fpirit of vio. )ence and zr- bitrary power that has ufu. ally prevailed in the fecreta- ry of iUte*$ c/Hce. J 248 ] ■ wa$ Gver-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 conflant 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 publifhing a colledion of warrants iflued by different fecretaries of ftate on various occaiions in almoft every reign for the preceding hundred years, or from the year 1662, 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 fufficient to exculpate the late Lord Ha- lifax 5 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, fince it (hews that for a hundred years tpgether they have taken upon them to ad, in the bufinefs of arrefting ftate- ofFenders, in a manner that bids open de^ance to the firft principles of law and juftice. And this they have done too without ever / , haviog but ^ by Mr, that time jrged hiiu fe, he faid, of former /arrants in rds proved publiihing yy different ccafions in ng hundred ay memory the greater Tue and ge* )erhaps, be Lord Ha- prove the prevailed in )ffice of fe- that for a . taken upon retting ftatc- ,pen deftance and juftice. ^vithout ever having [ 249 1 having been clearly invefted by any (latute of the kingdom with any power of arrcfting nien at all, even by warrants that name, or defcribe exadtly, the 'perfons who are to be arretted by them, and that are grounded upon previous informations of credible wit- nefie$ 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 iecretary of ttate itfelf has not exitted long enough for that purpofe, being no older than the reign of Henry the 8th, which began in the year 1 509, whereas, in order to be pof- feffed of fuch an authority by antient cuftom from time immemorial, it ought to have been poflefled of it before the time of king Richard the itt, or about the year 11 89. But the truth is, that the king*s fecretaries of ttate are his clerks, or letter-writers, whofe buBnefs it is to make knqiivn his Majetty's pleafure to his ambafTadors in foreign courts, or to the ambafTadors of foreign courts at his Majetty's court, or to his [Majefty's fubje<5ls in his own dominions on various occafions, but are not^ or, at Icaft, were not originally, The fecreta- ries of Hate have never been clearly inveiled with a power of arreting men at all, even by regular war- rants. ,i i ■ I ■f I *i; Vol. IL Kk 11$ K^i- ' , i ,■».,. [ 250 1 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 refpedt, 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 magiftratcs. For the arrefling, 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 jhe the great feal. And, as to the king's mef- fengers, they are not the proper minifterial ofHcers of juftice, like fheriffs and conftables, but are only (as their name imports) fervants kept in the king's pay for the purpofe of car- rying meftages for him with fidelity and expedition, either within the kingdom or without, as, for inflance, to carry difpatches to his Majefty's ambafTadors in foreign coun- tries: king's meffen gers proper officers to execute fuch warrants. [ 251 ] tries : fo that it feems doubtful whether even ' a legal warrant to arreft a man, ilTued by a known magiftrate, as a jufticc 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 (herifF or conftable, or other known minifterial officer of juftice. You fee therefore that A threefold there is a threefold irregularity grown up in hal^g'town'up the fecretary of ftate*s office with refpedl to j"^ ^^^ [^^^^r^ this practice of arrefting men for ftate- office.} offences. In the firft place they have ere€led themfelves into judicial officers, or magiftrates, for this purpofe ; in the fecond place th«y have made ufe of king's meflengers, inftead of (heriffs, or conftables, or other known minifterial officers of juftice, to execute their warrants; and in the third place they have framed their warrants in ?i general manner, without naming the particular perfon s 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. i' ■>.'4 . i: Kk 2 the ^v (.I'll ■1 I \i i ' m ;i The manner in which a prudent and moderate fe- cretaryofftate ought to pro- reed in the bufmefs of ar- refting ftate- offcnders. ';■ [ 252 ] the meflengers, (hall think, or fay that they think, to have heen.guilty of the offences in quc^ion. Thefe are flrange licences thalt have crept into the pradke of the fecretary of flate's office, and they fufficiently Oiew 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 (late had been committed, (whether it were high treafon or any lefTer 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 convidion and punifh- ment of the offenders, or even, if they had thought it fufficient to juflify the arrefling 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 (hould come on J they would have laid it before the chief juflice of the King's Bench, or before fome difcreet It they nces in ss thait jcrctary y (hew it. For, caution )rocced- follows. lad been L treafon lus libel,) cured all mcerning fons who I thought t a profc- d punifli- they had arrefting order to lerous de- icr proof' Id come the chief ibre fome difcreet t 253 1 difcreet and trudy juflice of the peace, and havededred him, (if he thought the inform- ation fu^cient, in point of law> to juflify the arrefting and imprifoning the offenders,) to fend for the witnefles 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 ifllie 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 condu€l of pru- dent and moderate men in the office of fecre- tary of flate, 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 punifliment of real offenders, without endangering the fafety of innocent pcrfons, or gradually tending to introduce a pradice of arbitrary imprifonment at the pleafure of the king*s minifters of ftate. And accordingly we find in a very able ar- gument of Sir Bartholomew Shower, (who was an eminent lawyer in king William's rcignO ^ 1 1 ' ^:' I. .h n .! '%.i ,i; ^' The cautious condudl of Sec. Coventry on thofe oc- cadons. In the year 1678 the chief juftice of the Xing's Bench was applied to for the pur. pofe of arreft- ing ftate - of- fenders. r 254 I reign,) upon this fubjcdl of the pretended power of fccrctaries of ftate to commit offend- ers to prifon, that Mr. Henry Coventry, a gen- tleman of great prudence and ability, who was fecretary of ftate about the middle of king Charles the ad's reign, did fcruple to exercife this power, of committing offenders to prifon, by virtue of his oflice of fecretary of ftate alone, and, by the advice of Sir William Jones, the moft learned lawyer of his time, procured him- felf to be made a juftice of the peace, and took the necefTary oath to qualify himfclf to adt as fuch, in order that he might be enabled to make fuch commitments legally, when the bufinefs of his ofHce of fecretary of ftate fhould give him occafion to do fo. And Sir Bartholomew fays further in the fame argu- ment, that fo lately as in the year 1678, (which was within his own memory,) when the popifh plot had increafed the number of prifoners to a wonderful degree, it was noto- rioufty known that Sir William Scroggs, who was at that time chief juftice of the court of King's Bench, was often fent for to Whitehall (that is, to the king's palace, \Yhcre the privy council met,} to examine, auii jtended offend- ', a gcn- i^ho was of king exercifc prifon, te alone, >nes, the ircdhim- and took to adt as [labled to when the of ftate And Sir me argu- ar 1678, y,) when umber of ivas noto- Scroggs, : of the ent for to r 255 ) ind commit, and grant warrants : and that of late years, (that is, for fome years before the year 1695, when this argument was de- livered,) the principal fecretaries of ibte had thrown that burthen, of examining and com- mitting offenders to prifon, off from them- ielves upon their under-fecretaries, who had been fworn juftices of the peace ; and that Mr. Bridgeman, (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 fubjedt, 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 exadt> 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 •- ; , . .1 ,.'iJ , ,:.,-■,. ./ ■l\. €.1 ;i I ., m '\\^'}'' t I •i' , I 1 : li r* IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^Kil25 1.1 1.25 itt lii 12.2 14.0 2.0 Photograpiiic ScMices Corporation \ <^ 23 WIST MAIN STiltT WEBSTER, N.Y. MSM (716)872-4303 ConcTufion concerning the general temper and fpiric tiiat has prevailed in the fecreury of ftate*8 of- £cc. [ 256 ] t fourth volume of the State Trials, page 554, &c. Iq the report of the proceedings between the K^ng and Kendal and Roe, who had been committed to prifon for high treaibn.-— — But, I believe, I have faid enough upon this fubjed 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 iVate in England, there has, Mpon the whole, been a propenfity in thofe officers to enlarge the powers of their office, and to difregard, in the condud of publick buiinefs, the Arid reftraints with which the law has circumfcribed, and, as they would call it, fettered, the exercife of the royal authority. .i '-i iftCi-: ,' -T V FRENCHMAN. " R<^Wance J feg very plainly the fpirit by which they Tit coa maxim have been governed. It is not unlike a t^ikd k^c maxim that has prevailed, (as I have heard) French go- jj^ ^jjg French government, to which I was vernmcnt. r i formerly fubjedti though, fortunately for Great-Britain, it has not been carried in that kingdom to near (b great an extent as in France. This je 554* iet>veeti ndbeen on.-— • r 257 1 This maxim is, that the kins; of France ads P^thc French , ° • Kingjordina- in the government of his kingdom, on dif- ry and extra- ferent occafions, in two diftindl capacities, pacS his ordinary capacity and his extraordinary capacity. In his ordinary capacity he exer- cifes his power by certain known rules and certain known magidrates, fuch as the ofH* cers of his parliaments and other courts of juftice, and other ordinary magiftrates, whofc jurifdidlions 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 tliinks proper ; — fonietimes flopping the regular proceedings of courts of juftice, even in civil caufes, by iJDCcial orders fent to the courts for that pur- pofe, which they dare not difobeyj at other times appointing new and fpecial jurif- dldtions, or perfons, to try particular caufes or perfons, who would otherwile be tried ift the ordinary courts of juflice; — and very frequently imprifoning perions, by letters de cachet y that is, by letters, or orders, under his fignet and fign-manual, and which are executed oftentimes by officers of his army. Vox.. II. J. I for ■• ^i 'W 'r i< if . [ 258 ] t'i II His fower of adling in his extraordinary capacity has been produc- tive of more mifchief to the people of France than his e yercife of the whole le- giflative au- th rity by his public edids. 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 magiftratcs of the kingdom, the perfons ib treated would not be liable to be imprifoned at ail. This dodrine of a double capacity, in which the king of France may a(5t, has been the fource of great hard- (hips and opprefHons in that kingdom, and indeed, one may fay, of all the oppreffions that have been pradifed in it againft parti' ctilar men that have been obnoxious to tint court or minifters, though bodies of men have fometimes been unjuftly treated by means of fevere publick edids formally promulged by the kings of France in their charader of le- giflators of that kingdom. It is true indeed that this latter charadler has been ufurped by them, or affumcd without the confent of the people, within the two or three laft cen- turies, and that in former times they exer*. cifed their legiflative authority in conjundion with the States-General of France, afTembled for the purpofe, in the fame manner as our own gracious fovereign exercifes the like authority in conjundion with the parliament . . of laces : ordi- red by igdom, [able to ; of a France It hard- m, and )reflions 1: parti- s to tlift nen have means of plged by er of le- le indeed ufurped anfent of lad cen- ley exer- ijundion flembled r as our the like rliament of [ 259 ] of Great-Britain. But, however, the exer- cifq of this ufurped power of legillation is a much more tolerable fpecies of oppreflion than that other y which arifcs from the doc- trine of the king's having a right to adt in his extra-ordinary capacity, and to employ extra-ordinary inftruments of his royal will, whenever he thinks fit; becaufe in all publick cdidls 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 lead, and fome appearance of reafon and juftice, will be preferved, in order to preferve, in fome degree, tjie 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 fubjedts of the king of France, if he would give up his power of ading in hi:^ extra-ordinary capacity and by the alliftance pf extra-ordinary inftruments, though be ihould retain the full power of making fucU new laws, and impofing fuch taxes, as he thought fit, by his fingle authority by means- tf his publick edids. But this is dill more ■r'^i- Li 2 to ''■l I .I'V' n % ■ !'■■•■- „ 1 ■Pi iiir t C m m If Everyattempt of the Crown to ad in an extraordinary capacity oaght, in a free country like England, to be oppofed with vigour. [ 260 ] to be infiftcd on in a country, which, like Great-Britain, can boaft of a free government. For in fuch a country the fmallcft attempt m the fervants of the Crown to introduce this doctrine of a power in the king to adt in an extra-ordinary capacity, or by extra-ordinary inftrun>cnts of his royal pleafure inftead of the ordinary magidrates and officers of judice, ought to be univerfally dreaded and detefted, and oppofed with the utmod vigour that the laws will allow. And upon this account I am forry to hear that the fecretaries of (late in England have been tamely permitted to affume to themfclves the power of iffuing warrants to commit offenders to prifon, and to employ the king's mefTengers, inftead of the {herifFs and condables, in the execution ef them, without being authorized to do fo by fome ad of parliament. It is a pradice of a fufpicious and dangerous tendency.^--— But now I beg you would come back to the fubjcd we were before confidcring, to wit, the king's inftrudions 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 advi^ their <. ' 1 , fovereigns », like [imcnt. mptm ce this t in an ordinary (lead of fjuftice, Icteftcd, that the :count I ; of ftate nitted to >f iffuing fon, and nftead of jxecution to do fo pradice Lck to the , to wit, Irnours of lat rcafon England lvi(^ their fovereigns [ 26. ] fovereigns to delegate fome powers of govern- ment to their governours of provinces by fuch inilrudions under the fignet and fign-manual, rather than by their publick commiflions, or letters patent, under the great feal. i^ -::^ •' it 'it ^f *'^ENGLISHMAN. - f J ^ The only way that I can account for this pradice is by fuppofing that minifters of (late, when they have been difpofed to engage in meafures refpeding his Majedy's American provinces, that were not perfedlly, or mani- feftly, agreeable to law, or that, though agreeable to law, were neverthelefs of an offenlive or alarming nature, have thought it a fafer and quieter way of proceeding to give the governours of thofe provinces the nece(rary powers and diredlions for fuch pur- pofes by private indrudlions under the king's (ignetand fign-manual than by the more folemn and publick method of letters patent under the great feal. By this means they have avoided the objeflions 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 ■ ' . undLT A conjcAure concerning the motives that may have given rife to the practice of delegating fome of the powers of go- vernment to governours of provinces by inllru^Uons under the fig- net and fign- manual. f- W :'i-i \ \ -'. I 1:-' . :i' ill' '•5 it b l' I [ ^^2 ] under the great feal are infpeded and exa- mined before they pafs, but who have nothing to do with inftrudtions under the fignet and iign^manual: and by this means alfo the powers fo given to governours may be kept from the knowledge of the people of their rcfpedlive provinces, if not wholly, yet at leaft for a time, namely, till the governours find occafion to make ufe of them s whereas, if they were inferted in the commiflions to the governours under the great feal, which are publickly read to the people at large im- mediately upon every governour*s arrival 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- fpeded by every perfon rhat is defirous of , reading them^^ they would immediately be- come the objedl of the people's attention, and might give them fome uneafinels and fpread an alarm amongft them. Accor- Thc conduft dingly we fee in the cafe of our own province of the Crown of Quebcck, that, fo long as the delegating tionoUlimi- the powcfs of legiflation to the governour leeifla^tfvT ** ^"^ council Only, without an aflcmbly of power to the ([^^ people, was a matter or a doubtful and governour * * and council of delic;Ue xl.t piovince of Quebcck, withciit zv, afenlily, 1 y .^n iinruO'on i'nclei thi i^Bui ^r.d lign iiiaHU^I, is a cor.hrn-!UUcn ol' the Irid ccnj'.vunc. id cx»- nothing rnetand alfo the be kept of their ', yet at (vernours whereas, iilions to 1, which large im- arrival in icorded in E)f the en- there in- iefirous of lately be- attention, inels and Accor- province Idelegating Igovernour Icmbly of ibtful and V'O'n "iindei ta- lc ri'.^'V' viic. [ 263 1 t delicate nature, not clearly and manifcftlv within the compafs of the king's legal pre- rogative, (which was the cafe until the late Quebeck-a<a,) his Majefty's minifters of ilate thought fit to advife his Majcfty to delegate thefc powers to his fucceflive governours of this province, General Carleton and General Murray, only by an inftru6lion under his fignet and fign-manual, which accompanied their rcfpedtive commiffions in the years 1 763 and 1768, but not to mention them in the commiflions themfelves under the great feal, which contained only the common claufe for delegating the powers of legiflationto the governour, council, and affembly. And this precaution was thought neceflary to be ufed, notwithftandin^ the power of legiflation thus delegated by a private inftruftion, 10 the governour and council only, was of a much narrower extent, (as we have already ob- ferved,) than that which was delegated to the governour, courtcil, and aflembly, by the cpmmiffion, not being (as that was) a ge- neral power to make laws, Jlatutes^ and ordi-- nances for the peace y *weljare, a7id good govern- ment of the province, but only an authority to fiiakf U7i I. -I, 6 iTS ' 'I-, 4 ■V' \ \\ I When the Quebeck-aA vraspafledy a greater degree of legiflative power %vasde« legated to the govemoarand conncil by a danfe in the goverpoDr*8 commiiTion ■nder the great feal. t 264 ] tjiakejuch rules and regulations as Jhould ap^ fear to be necejjary for the peace ^ order ^ and good government of the /aid province-, taking tare that nothing he pajfed, or done^ that Jhali any ways tend to affeSl the life^ limb, or liberty of the fubje£lf or to the impofing 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 almod impoflible to make an cfFedlual regulation upon any fubjedt without in fome degree affeding, if not the lives and limbs, yet at leaft 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 private inftrudion. But, when the ad of parliament for the government of the pro- vince of Quebeck had clearly and poiicively enabled his Majedy to appoint a council in the province, who (hould have power (as the aft exprefles it) to make ordinances for tU peace^ welfare ^ and good government of the f aid , provif}ce, r -65 ] province^ with the confent of his Majeftyi govemour^ or^ in bis abfence^ of the lieutenant^ governouKt or commander in chief for the time heingt and a new conamifllon was to be given to general Carleton, grounded on the faid adt, this legiilative authority was delegated to the governour and council in a plain, and exprefs, and araple, manner by a claufe in the commifiion under the great fea), jufl as in the former commifHons the fame authority had been delegated to the governours, coun- cils, and affemblies. This, I think, is fuffi- cient to (hew that, when recourfe has been had to the fignet and (ign-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 leaft, it was appre- hended that the open delegation of them by the commiffions under the great feal was likely to give offence, or create uneafinefs, in the provinces in which they were to be exercifed. And, as for the words of refe- rence to infli u(5lions under the fignet and Vol. II, , M m fign- '^t .* % i,i^' I ; ' Kip A conjcAure concerning the reafon of infertinginthe commiflions of governours of provinces under the great fcal a claufe of refe- rence to pow- ers to be dele- catcd to them by inftrudions under the fig- net and fign- nanual. It would be morejuft and prudent to delegate no powers of go- vernment any other way than by an in- llrument un- der the great UsA. [ 266 ] fign-manual, which we have before obferved to be inferted in the commiflions of go- vernours, they feem to be put there in order to give to the indrudtions, fo referred to, an appearance of partaking of the authority of the commiflion under the great feal, in which the faid reference is made ; 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 fhifts 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 Majefty, in thofe cafes in which he, in his royal wif- dom, fhould think fit to delegate to his governours of provinces any uncommon powers of government in their refpeftivc provinces, to confider firft, whether, or no, the Crown was legally intitled to exercife thofe powers itfelf and to delegate them to any other perfon ; 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 a [ 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 exercife or delegate fuch powers, to have recourfe to the fupream and indifputable authority of parliament to caufe the fuid go- vernours to be invefled with the faid ne- ceiTary powers, as has been done with refpedt to this province by the late Quebeck-adt. For nobody, I prefume, will deny that, if it were fit at all to invcft the governour and council of this province, without an affembly of the people, with a power of making laws for it, the proper method of doing this was by an a£b of parliament. The juflice and utility of that, and many other of the pro- vifions of that a£t, are what, indeed, we cannot eafiiy be perfuaded of: but, if they had been jufl and ufeful to us, the mcafure itfclf of eflablifhing them by the authority of parliament mud 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 necefTary to be taken in a province, which are not clearly, (beyond Wn the fhadow of a doubt,) within the M m 2 compafs Andyifdoubti are entertain- ed concerning the legal right of the Crown to delegate the intended pow- ers, recourfe fhould be had to the autho- rity of parlia- ment for th(. purpofe. f 268 ] compafs of the king's legal prerogative; And, as for inftrudtions under the king's lignet and fign-manual, they (hould be em- ployed for their original and proper purpofc, which is that of conveying to his Majefty's govcrnours the directions he thinks fit t6 give them cOiicerning 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 ; and for no other purpofe whatfoever. Thefe are the beft conjedures I can make, (for, I acknowledge, they are but conjedures,) concerning the reafons that may have induced the miniflers of (late on fome occafions to advife the Crown to delegate the powers of government to governours of provinces, by inflrudions under the (ignet and fign-ma- nual, inftead of the commiffions, or letters patent under the great feal. FRENCHMAN. They feem, however, to be plauiible coii- jedures, and will account tolerably well for this irregular and unjuftifiable pradice. And, as gativc; king's yc cm- arpofc, [ajefty's fit i6 i which of go- ly dele- andfor t ^69 ] as to thofe words in the governour's coia-^ miflion which refer to the indrudtions under the (ignet and fign-manual, and feem to be intended to communicate to them in an in-* diredt 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 paffed by the governour and council during the adminiftra- tion of General Murray. For I had obferved that in the pre-ambles to feveral of thofe ordinances it is dated that they are made by the faid governour, by the advice, and with the confent of his Majefty's council of the province, and ly virtue of the power and authority to him given by his Majeftys letters patent under the great Jeal of Great-Britaiuy notwithftanding (as you feme time fmce ob- ferved) there was no claufe in his commiffion under the great feal that exprefsly gave him fuch a power. This feemed to mc extreamly ftrange i and I Hid not know how to account for it. But now I fuppofe that the perfons who framed and pafTed thofe ordinances> mufl have alluded to thofe words in the commiflion under the great leal which refer , . to Of the ordi- nances palled by the gover- nour and council of ' Quebeck be- fore the lale Quebcck-ad. .■■■1„ i' I ,t'l m I [ 270 ] to the powers contained in the inAriidlions, amongft which there was a power to exer- cife a certain limited legiilative authority by the advice and confent of the council only, and muft have conlidered thofe powers in the inflrudtions as being, in a manner, adopted^ by fuch reference, into the commiHion, and, made to partake of its authority. ENGLISHMAN. There can be no other way of reconciling with truth the afTertion you mention as hav- ing been made in the pre-ambles of govemour Murray's ordinances. But, pray, is this a^rtion to be found in the pre-ambles of <7// thofe ordinances, or only oi fome of them ? for I had imagined that in fome of thofe ordinances the governour had fairly dated 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 inftrudtlons. 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 mc h9W this i$« fRENCH- t 271 ] aions, exer- :ity by only, /ers in tdopted^ on, and, ' V - loncilin^ as hav- overnour is thii nbles of )f them ? of thofe dated in making il of the to him i)u would folio vo- and exa- 1 tell mc , 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 ilated them. But the book will determine.—- The firft ordinance is exprefled in the manner you have fuppofed, and dates the legiflative authority of the governour and cojuncil of the province to have been communicated by the king s indrudtions. It is intitled, *' An ordinance Jor regulating and eftablijhing the currency of the province :" and the preamble of it is as follows 5 Whereas his moft Sacred Majefty^ by his inftru&ions to his Excellency, bearing date at Saint James s the feventh day of December, one thoufand, /even hundred, and ftxty-threCy hath been f leafed to authorize and impower his /aid Excellency, with the advice and ajjiftance of his Majeftys council, to make rules and regulations and ordinances, Jor the better ordering and well governing of this his province of Rebeck, &c. This ordi- nance is dated September the i4th> 1764. -:;^ I: f ■'' m '1 \ i"'i The f 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. Hh Excellency^ the gooermur^ by and with, the advice^ confent^ and ajjijiance of bis Majeftys council^ and by virtue of the power and authority to him given by his Ma- jeftys letters patent under the great feal of Great-Britain, hath thought ft to ordain and declare, &c. Here, you. fee, the governour 9fHrms, that he ads by virtue of a power given him under the great feal, as I had fuppofed. 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 ; this ordinance, from its great importance and our frequent occafion to refer to it, having made a deeper imprefiion on my memory thar^ any other. ENGLISHMAN. I muft, however, obferve that the governour had more reafon for afferting that he adled by virtue of an authority under the great feal in pafling this ordinance than in patTin j any other ordinance j [ 273 1 ordinance j bccaufe there was a claufe in his comminion of governour under the great feal which cxprefsly authorized him to eredl courts of judicature in the province with the advice and confcnt of the council oniy. This claufe was in thefe words. And we do hy thefe prefents give and grant unto you^ the faid James Murray ^ full power and authority^ wokb the advUe and confent of our faid coun- iMi to ireSty conftitutey and ejlabliffo fuch and fi tnany courts of judicature and puhlick jufiice wthin eur faid province under your govern* ment as you and they fiall think fit and necef- fafy for the hearing and determining of aU caujesy as well criminal as civil, according to law and equity ^ and for awarding execution thereupon^ with all reafonabie and necejjary powers y authorities y fees, and privileges, ^^- knging thereunto ; as alfo to appoint and com* mifjionate fit perfons in the Jeveral parts of pur government to adminifter the oaths men* tioned in the afore faid aB, intitled, ^^ Ana5t ^^ for the further fecurity of his Majefiys " perfon and government, and the fuccefjion of the crown in the heirs of the late prince fs Sophia, being Proteflafits, and extinguijinng Vol. II. N n *' the (C f( 'l^ 'i- i' ■li' i-.W J '[ 274 1 *' the hopei of the pretended prince of Wales, " and his open and fecret abettors y' as alfo to tender and adminijier the aforefaid declara- tion to fuchperfons belonging to the jaid courts asjhall be obliged to take the fame. By this claufe in the governour*s commiflionJt ap- pears, that, fb far as the faid ordinance is employed in the ereftion of courts of juftice in the province, it may truely be faid to have been palled 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 edablifli courts of judice: and, if it does, it cannot in thofe further particular^ be faid to be pafTed by virtue of fuch an authority^— But I beg you would go on to the pre- ambles of the following ordinances. k) ■ '•.!.■•'• ..FRENCHMAN. The next, or third, ordinance in the book is an ordinance for declaring what fhall 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- ' ' ' fent, ■ Prales, as aJfo declara" Id courts By this iJt ap- nance is jf juftice 1 to have ity com- overnour reat feal. lore than it does, r§ be faid hority^— the prc- t ^75 1 . fiftfy and ajpftance of his Majeftys council^ and by virtue of the power and authority to bim given by his Majeftys letters patent under the great jeal of Great-Britain^ hath thought fit to ordain and declare^ &c. ' ' .^.,1 The fame words are ufed alio in the fourth ordinance, which relates to the afiize of bread and the afcertaining the flandard 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 eflablifhed in the province in the time of the military go- vernment of it 5 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 1 764 j 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 a under i imtn 'M v-.r ■ m 1 1 '< End of the re- marks on the itature of in« ilru£lions to goverrxurs of provinces un- der the king's Agnet and fi^n-mannal, begun in page 224. [ 476 ] uniier the great feaK* are omitted. Here ar^ therefore four ordinances^ beiide$ that fQr eitablifhing courts of judicature in the pro- vince, in which it is averted by the governoiir and council of this province, that they were authorized to make them by his Maje(ly*s letters patent under the great feal. And confequently, as there is no claufe in the governour's commifHon under the great feal which impowers him to make ordtoances with the confent of the council onIy» with-- out an afTembly of the people,, we muft fup* pofe that the gentlemen who made this aiTertion, grounded it on thoTe words in the commiflion, which we have already fpoken of, and which refer to the powers of government which then were, or afterwards (hould be, de- legated to the governour by his inftrudlions. — But I am now fatisficd with what you have faid concerning the nature of a governour's com- miffion under the great feal of Great- Britain and his inilrudions 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 commiffion alone is the inftrument by which the powers of ijsit fpr c pc Q- efnour y were [ajefty*s And in the reat feal lioances V with- uft fup- ide this Is in the oken of, ernment I be, de- mons. — lave faid 's com- . Britain 's fignet nfirmed ffcrence miiTion powers of [ 277 I of government can be legally ddegated to a governour of a province, and that the in- ftrudtions under the fignet and lign-nianual ought only to contain dired^ions to his Ma- jefty's governours in what manner, and under what reftridlions, his Majefty woold 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 (aid con- cerning the remaining hiftorical examples he adduced of the king's exercifing the powers of legiflation 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 recoiled that you mentioned any other places as having been cited by him on this occafion, betides thofe which we have already confidered. . . ENGLISHMAN. Your memory does not deceive you. Theie were the only remaining indances his lord- ihip mentioned in this hiflorical part of his opinion^ though in the flibfequent part of it, which Examination of the remain- ing examples cited by Loid Mansfield, in fupport of the king*8 fole le- giflative ao* thority over conquered countries* m-^ ( 1. I I jj ,? ■tr -■■■ 1: i.ord Manf. field^s words concerning Gibraltar. ■i.'i ' ».>ii'i ■ 1 1 j'- • t 278 ] 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 fince <* that conquefl, made orders and regula- " tions fuitable to the condition of thofe who " live, or trade, or enjoy property in that " garrifoncd town." *^ ; ><i His words concerning Minorca. And with refpeft to Minorca his words are as follows. " Mr. Attorney-General alluded to a variety of inflances, and fcveral very lately, that is, within thefe twenty years, or thereabouts, in which the king had exercifed legiflation in Mi- norca. In Minorca it is faid 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 conflitution continues, the fame argument holds here : for before the 7th of O6I0- ber, 1763, the conflitution of Grenada *' continued, cc cc (( cc <( cc <c <c cc iC (C t( ^yers lority upon Gib- ard to : pro- ;r fincc •egula- >fc who in that J words General Bs, and n thefe which in Mi- e are a worth ; on. If [he place leir old gument ,f 06to- renada intinued, [ 279 ] " continued, and the king flood in the place *' of their form^ fovereign." This is all that was faid by Lord Mansfield concerning Gibraltar and Minorca. . : • t . ^ j nvAwr. ' 1 • < • i ■ .•.!Si<«JI ,» »• * ••>• I n »'-( '•■fiO. FRENCHMAN. Pray, is the fa£t as it is here dated? Have P^ «^e ^cg'f- 1 /. /-I n **^'ve power the kings of Great-Britain, lince the conqueit that has been of Gibraltar and Minorca, made laws for the "" Crown ^ inhabitants of them by their own fingle ^y*"^ '^^^ •^ o places. authority, or without the concurrence of parliament ? ': VKiiJurj 'h: 'i"' 3ll.' * .0. i it'i'ii'i;.' .0".;.. .t' — 'Ir.^ ENGLISHMAN. : -r:'*:* ; 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 fo 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- refles built for the defence of the harbours of Gibraltar and Port Mahon, which have been retained by Great-Britain fince the peace of Utrecht ii ^ '■!■■ 'i *^ ]^,i r 280 J 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- Of Gibraltar, vemment of them. Indeed Gibraltar is a mere town, without an inch of territory belonging to it without the walls s and its inhabitants, (exclulive of the Britiih garrifon») amount to no more than two or three thoufand fouls : 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* fidered ;— as a fort of appendage to the gar- rifon, which is governed by the fyftem of martial law eflabliihed every year by the Britifli parliament by the ad for preventing mutiny and defertion. However, I believe it is true, as Lord Mansfield ihted in the words above-cited, that the kings of Great- Britain have, ever iince the conquefl 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 thefe orders have been made by them in their privy-council. But I am not perfectly informed upon this fubje(^. As Medi. 18 been ivii go- amere longing bitants, ount to i fouls : f three e other eredj— en con- the gar- ^ftem of by the eventing believe in the Great- of Gib- fuitable |or trade, id I fur- :en made ut I am lea. As r 281 1 .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 iflandi of about thirty-three miles in length, and ten miles in breadth, and contains about twenty thoufand inhabitants, befides the Bri- tish garrifon of fort St. Philip's, which de- fends the harbour of Mahon. Yet even this country has been almod intirely ne« gleded by Great-Britain as to its internal cultivation and government, and confidered (like Gibraltar) as an appendage to St. Philip's caflle, which defends the harbour of Mahon ; and no civil governour has been ever appointed over it by the king. The Spanifli laws, both criminal and civil, have been permitted to continue in it, and no attempt has been made by the Engli(h government to introduce gently and gradually, and with the confent of the inhabitants of the illand, any of the Englifli laws amongft them, nor the pro^ feffion of the proteftant religion. The con- fequence has been that they have continued bigotted Romans Catholicks ever (ince they Vol. II. O o have or Miiorca; The internal cultivation and civil go- vernment of this ifland have been much neglefted by Great Britain. Jll confequen- ces of the faid negleA. ^ : - vii: u i [ 282 ] have been fubjedts of Great-Britain, and have been ill-difpofed to the Englifli government upon the ground of religion and froni an averfion to hereticks, which has been con- ftantly cherifhed in them by their priefts and by the bifhop of the neighbouring Spanifti ifland of Majorca, who (though a fubjed of the king of Spain) has been permitted to conie into the ifland of Minorca, and exercifc his epifcopal jurifdidtion over its inhabitants. And in the beginning of the lafl war with France, I remember, it was faid we found the ill effedtsof the aforefaid prejudices againd our religion and government in the general difinclination of the natives to aflift the Briti(h garrifon in defending St. Philip's caftle againft the French army that invefted it : infomuch that the ill policy of the Britifli miniftry, with refpedl to the government of the ifland of Minorca, both before and fince the late war, (for, notwithftanding 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 objed: of general cenfure amongft fuch perfons as have bad I have iment )m an 1 con- fts and 5pani(h bjeaof itted to exerclfc abltants. ar with /e found ;s againft » general le Briti(h le againft Lnfomuch miniftry, the ifland the late 'Xperience ifafFeaion aforefaid ir mannei- objea of (ns as have bad [ ^83 ] had occadon to coniider It. This example, therefore, of a country fo much neglefted as Minorca has been by the Britiih government, I mud needs confider as having but little weight in determining the prefcnt queftion concerning the legiflative authority of the crown of Great- Britain over conquered countries. This neg'ea renders this ifland an ex- ample of le/s weight & au- thority than it would other- wife be, with rcpcd to the pnient quef^ tion. I muft alfo obferve that the leaiQative Oft^ef'^bjeas ^ on which the authority which the kings of Great-Britain Crown has 1 '/-J ^1 1 r « *• exercifed a le- have exercifed over the people of Minorca oinaiive au- by 'their orders in their privy-councils, (for ?{j°'"^^^' '" ^^^^ that is the way in which this authority has been exercifed;) has been only on fubjedts of fmall importance. At lead I have never heard of any others ; though it is probable that, if there had been any greater exertions of legiflative authority by the Crown, thi^y would have been mentioned on the late trial of the adtion of Fabrigas, an inhabitant of the fuburbs of St. Philip's caftle in Minorca, againft Lieutenant-general Moftyn, the gor vernour of the ifland, for impriibning hira and banifliing him from the ifland j becaufe in that trial the unlimited power of the king O o 2 and dUH t-^:- k! I [ 2^4 J and his delegate, the governour, were much infifled on as a ground of judification for General Moflyn. 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 hnportance. 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 fhould be permitted to fell their wines j which was done by veding a power in a certain publick ofHcer, called a Jurats in each of the four terminos, or diftridls, into which the whole ifland is divided, of fixing the price of them in his refpedive diflrift. But, I prefume, there have been many other orders of the king in council upon fubjeds of a iimilar nature, that is, relating to the police, or good order and publick conve- nience. I 235 1 nience, of the ifland, becaufe Mr. Wright, (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 Spanifla laws, yet the king in council, upon all occafions of application to him, iiTues 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^ vernmenti (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 c nd imperfed kind of legiflative authority, and by no means fufficient to fup- port the dodtrine laid down by Lord Manf^ field of a compleat legiflative authority over conquered countries in the Crown alone, except on fuch fubjedts as have been already fettled by ads of the Britifli parliament an- tecedent to the conquefl of them And to this I mud add, as a further proof of the obfcure Stv i ;>. ! *• I - m faid liland. i C 286 ] Of tlic unccN obfcure and unfettled ftatc in which matters tain ftate ot Che laws in the relating to the laws and government of that ifland are permitted to continue, the tefti- mony that was given by another witnefs on the fame trial, who had reiided a great num-< bcr of years in the faid iiland, and mufl 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 year 1750, and had gone to it again in May, 1763, and continued in it till May, 1 773. This gentle^ man teflified on that occafion, '^ that the Minorquins mod commonly pleaded the Spa- ni(h 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 moft prevailed there was the Spanifli law j— 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 latters }f that i tcfti- lefs on : num- : there- uainted :ullock, I in the 50, and 113, and gentle- that the the Spa- d them when lient for and 5—^ irevailed hen the by the he bc- relation ,s to be Irown of received the [ 487 1 the Minorquins under its government upon the fame footing as the French had held the dominion over them during the late war ; but that (ince that time the Minorquins had made intered writh the king's miniflers in England to have the fame lav^^s and privileges reftored to them which had taken place before the ifland 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 MacCuUock*s teftimony. Now inf>a country Condufion ... . rt r 1 '^/- fromthenceas in which it is cuftomary for the ^people fome- to the pxeicax times to plead the Englifh laws and fome- times the Spanidi, as the one or the other fyftem happens beft to fuit their temporary convenience, I mud needs think the date of the government too uncertain and confufed to be made a folid ground of argument in a queftlon of fuch importance as this we are now examining, concerning the legiflative authority of the Crown alone over countries acquired by conqueil. V FRENCH- queilioa* !■: < .1 A,- :■■! [ 288 ] c: ■I"}' FRENCHMAN. Indeed this example feems too weak a foundation to fupport fo weighty a fuper- ilrudure 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 ceflion, without any other reflriftions than thofe which arife from antecedent adts of parliament, in the manner Lord Mansfield has afferted. And therefore I muft conclude that the whole of the hido- rical part of his argument in favour of this legiflative authority of the Crown is infuffi- cient for the purpofe, all the former inflances 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- pofltion, and fome of them to be even ad- verfe to it. We have therefore now got rid (at leaft, to my fatisfadion,) of two of Lord Mansfield*s grounds of argument in fupport of this dodrine, out of three, iiamely, of * the field as proofs of the fole legiflative authority of the Crown over conquered countries. End of the examination of the prece- dents, or hif- torical exam- ples, adduced by Ld Manf- weak a fuper- ompleat ; over all f Great- bout any rife from 2 manner therefore the hifto- ir of this is infuffi- inftances is autho- Iraltar and i, Wales, :ony, and {hewn to this pro- even ad- >w got rid of Lord in fupport [amely, of the ver conquered r 289 ] the ground of reafon and general principles of law, and the ground of hiflorical 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 pther learncid lawyers, who have occafionally declared themfelves to be of opinion that the Crown was poffefled of this power of making laws, without the parliament, for the go- vernment of conquered countries. I there- fore now defire you would inform me what my Lord Mansfield faid upon this head. ' ENGLISHMAN. His words were as follows. " It is not to be wondered at that an adjudged cafe in point is not to be found. No difpufe ever was (tarted before upon the king's legiflative right over a conqueft. It never was denied in Weftminfter Hall -, it never was queftioned in parliament. Of the opini- ons of judges and other learned law- yers, cited by Ld. Mansfield in fupport of the king's fole legiflative au- thority over conquered countries. <c ct C( cc Lord Manf. field's words upon this fub* jeft. cc cc cc " Lord Coke's report of the arguments and refolutions of the Judges in Calvin's cafe lays it down as clear, that, if a king come to a kingdom by conqueft (I The opinion of the indp:e9, as reported in Lord Coke's report of C«.l« vin's cafe, in the 7th book ol bis reports.. {'/.• I i t» t 290 ] «* omit the diftindtion between a Chriftiari " and Infidel kingdom ; which as to this purpofe is wholly groundlefs, and mod defervedly exploded : but that ftrange ** extra-judicial opinion of his as to a conquefl " over a Pagan country will not makereafon ** not to be reafon, and law not to be law, as to the red.) 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 *" he doth make an alteration, the antient laws of that kingdom remain. But, if a king hath a kingdom by defcent, there, (feeing by the laws of the kingdom he doth inherit the kingdom,) he cannot " change the laws of himfelf, without con- fent of parliament :'*' ** In which words it is plain that Lord Coke means to fpeak ** of his own country, in which there is a ** parliament." Lord Coke then goes on as •* follows. *" Alfo, if a king hath a king- ^" dom by conqueft, as king Henry the ^'* fecond had Ireland, after king John had 11* given to them, (being under his obedi- ffC cc cc <c ccc C(< ccc (t< ccc ccc cc (CC ence [ 291 ] ence and fubjedlion) the laws of England *" for the government of their native coun- try, no fucceeding king could alter the fame without parliament."' " Which is very juft, and neceflarily implies that king " John himfelf could not alter the grant of " the laws of England. ' : Ut €l( ill it '^ ¥,,^^ cc « cc <c cc cc cc cc cc cc C( C( (C cc cc (C t( " Befides this opinion of the judges in Calvin's cafe, the authority of two great lawyers has been cited, who took the propofition for granted. And, though the opinions of counfel, (whether ading offi- cially in a publick employment or in the capacity of private lawyers,) are not pro- perly authority to found a decifion upon, yet I {hall cite them on this occafion, not to eftablifh fo clear a point, but to flicvv that, when it has been matter of legal inquiry, the anfwer which it has received from gentlemen of eminent chara<fler ancj abilities In the profeflion, has been jmrne- diate and iDithoitt hcfttaiion, and agreeable to thefe principles. That opinion was as follows. In the year 1722 the afiembly of the iiland of Jamaica having refufed to P p 2 " grant Tbe optnioii of Sir Philip Vorlce and Sir Clement Wearg, (at- torney and follicitor ge- neral to king George the III,) in the. year 1722. i-'\'i- (t cc C( <c « cc c< ccc CC( ccc ccc ccc ccc ccc cc cc cc cc cc cc cc cc cc cc cc ti t 292 1 grcnt the ufual fupplics, it was referred to Sir Philip Yorkc and Sir Clement Wearg (who were at that time the king's attorney and follicitor general) to confider what could be done if the affembly fhould per- fift in their refufal. They returned for anfwer, *" That, if Jamaica was ftill to be coniidered as a conquered country, the king had a right to lay taxes upon the inhabitants : but, if it was to be confidered in the fame light as the other colonies, no tax could be impofed upon th^ inha- bitants but by an alTembly of the iiland or by an adt of parliament/" By this opinion of thofe able lawyers it appears, that they held the didin^^ion, in point of law, between a conquered country and a colony to be clear and indifputable : but that the queAion, whether the ifland of Jamaica, (to which the cafe before them related) had remained in the (late of a conquered country, or had fince become a colony, was a matter which they had not examined. 1 have myfelf, upon former occafions, traced out the conftitu- tioti of Jamaica, as far as there are books V or «( c< cc « cc cc (( cc (( u ccc ccc C(C cc cc cc cc cc cc cc cc cc cc cc cc « [ 293 ] ^ or papers in the publick offices, to enable ^^^''Jjf JJ^ one to do fo. And I could not find that iettiement of any Spaniard remained upon the ifland fo Jamaica. late as the Refloration : if there were any, they were very few. . A gentleman who is well acquainted with the (late of that ifland, and of whom (upon hearing this ifland mentioned in one of the arguments in. this caufe,) I aflced the queflion, in-> formed me, •" that he knew of no Spanifli names among the white inhabitants of Jamaica; but that there were fome a- mongft the Negroes.'" " The method of proceeding taken by the Crown with re- fped to the government of that ifland was "':'•';. f this. King Charles the fecond, (bon after the Rcftoration, invited people, by his pro- clamation, to go and fettle there, promifing them his protedHon j he made grants of land there j 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 aii aflTembiy. The conftitution of every pro- vince in America that is immediately under the king, (or is governed only by his com- i( r i r •*-l • <t " miflion, ■ •■. • r Lord Manf* field's conclu- fionfromthefe opinions. [ 294 1 '* miilion, without a charter,) has arifen irl " the fame manner, — not by the grants, ** but by the commiflions to call afTemblies* ** And therefore, all the Spaniards having " left the ifland of Jamaica, or been driven " out of it, before the Redoration, the firfl fettling of it after that period was by an £ngli(h colony, who, under the authority of the king, planted a vacant ifland which belobged to him in right of his crown ; ** as was the cafe with the iflands of St. Helena and St. John's, which were men- tioned by the attorney general in his argu* " ment in this caufe. To conclude there- fore ; A maxim of conflitutional law fup- 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, J make no doubt, acquire feme authority, even if there were any thing which otherwife *• 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 indance has been found in any period of our hiftory, where a .. : « doubt cc C( «c <c cc (C cc cc cc cc cc cc cc cc cc cc ^ ^4 n [ 295 1 " doubt has been raifed concerning it.— *-^ " Thccounfc. for the plaintiff in this adtion, " therefore, when they laboured this firft " point for th'^ir client, muft befuppofcd to *^ have done lo only from a diffidence, or ** uncertainty, concerning the opinion we <' might entertain upon the fecond point, or " the effedl of the king's proclamation of ** 0(^ober, 1763, by which he promifed the ** people of Grenada that he would caufe •* an affembly of the freeholders to be fum- ** moned in that idand. But, with refpedt " to this fecond point, we are, after full ♦* confideration of the fubjedl, of opinion ** 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 Odlober, 1763, precluded himfelf from the exer- cife of a legiflative authority over the ifland ** 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 ground of the opinions of judges and other K CC <C (( €f The opinion of the court of King's Bench withrefped to the operation of the king*s proclamation ofOa. 1763. '.m iff ' M) II A remark up. on the opinion of the judges cited from Calvin's cafe* ftOrzi'Tr';' V: [ 29^ ] ether learned lawyers, in delivering thtt im^^ portant judgement. How far it iscondufive, or fati5fai^6ry, upon the matter, I leave, you to judge, ii. ^ ri, iil ^^ * ^ s/i- ui tv'i iUKJi FRENCHMAN. Why, truly, I cannot think that there is fo much weight in thefe authorities as my Lord Mansfield afcribes to them. For, as to the firft of them, if I underftand it right, it feems rather to make againft the fuppofed right of the Crown to make laws for con- quered countries, than to be favourable to itj becaufe in the latter of the two palTages 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 ** 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 cafe of Calvin, acquire, by the conqueil of Ireland, a permanent right cf ..w,^/ " ^ ' ' legijlation ti <c cc (C [ 297 } legijlatiqn over it, fo as to be aWe to make gnd unmake, and alter, the laws of it when- ever, and in what manner foever, they fhould think fit, (a$ 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 (lead, which (as we have already * obferved) is a very different thing from the aforefaid proper and permanent iegillative authority. And, as to the other A remark on authority mentioned by Lord Mansfield, and sir 'phiilp'* ° fo much relied upon by him as of decifive ^°emen"'^ ^'"^ 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 1722, 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 perfed and permanent fort of legiflative authority over Jamaica, in cafe it was ftill to be confidered as a conquered country, as Lord Mansfield has alcribed to it with refped to the ifland of Grenada before the proclamation of Odlober, 1 763 : but yet I Vol. IL Qjj cannot * Sec above, page 67. year 1722. ^M ■'A i t' ?■: r 298 ] cannot think it a very refpedlable authority, nptwithftanding the great learning and emi- nence of thofe gentlemen j partly, becaufe it feems to have been rather a ha% opinion, upon which they had beftowed very little confideration, (ince 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 cbnqueft 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 follicitor 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- gefted teftimony of interefted witnefles, iitnd, as fuch, to be but little regarded. Clei in t toti: the[ well to h: very did n ENGLISHMAN. I look upon thefe two authorities in much the fame light as you do ; and I more efpe- 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 E 299 ] Clement Wearg in the year 1722. Perfons in their then flations mud 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 haAily and with very little attention to the fubjedt, fince 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 conqued or a colony, though this was abfolutely neceffary to make their opinion of any ufe to the minifters of flate who had confulted them. It mud however be confefled that, crude and hafty as this opinion feems to have been, it ferves to fliew that thofe two great lawyers had a general, loofe, floating, idea of the king's being the abfolute legiflator of all countries acquired by conqueft, 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 Jiever could fee anv fufHcient foundation for it. ■J • » »> ■■■#.■ ■:!' t Q^q 2 But, [ zoo ] * Further re- But, as to the Other authority cited from opinion of the Calviii's cafe, you would think it of ftill lefs from Calvin's confequcncc than you now do, if you knew ca'e. jH ijjg circumftances that accompany it in Lord Coke*s report of that cafe. For it is one of the mod vague and defultory and extra-judicial declarations upon a lubjedl of law that is any where to be met with in the English 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, which Lord Mansfield has quoted with fo much refpedt, I therefore beg you would give me a (hort account of it, and of the manner in which the paffage quoted by Lord MansBeld is introduced in it. ENG- I 301 ] rom lefs new it in it ts and a of nthe ,fe in itfelf, :ourt, ary to y the ) was i>> S'n I '!♦«•''' »• » NG- 4 >*>t,< I '^U ENGLISHMAN, 1. 1.; r' . i reigners. I will endeavour to fatisfy you upon this fubjedt as well as 1 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 pofljble. You muft know then, in the firft placed of the law of • • • /•iT-»i'/*i ■% England with that It IS a maxim of the Englwh law, that refiea to a- no alien, or foreigner, or perfon horn out *^"** ^^ ^' of the dominions of the crown of Englai^d, though he fhould 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 Engliflimen employed in foreign cmbaiTies and born in the countries in which their parents are fo employed during the continu- ance of their employments, and of the children of Englifh merchants fettled, for the purpofes of trade, in fome Englifh fadlory that has been eftablifhed by the king's authority in the territories of fome foreign I r;. !|;;; it M^ ill- A ■; .(>, '§■■ 'i-: r 302 ] foreign prince, or ftate, by the permifliqn of fuch prince or (late. Children born abroad under thefe circumftances, and, perhaps, under fome other circumdances of a (imilar nature, are confidered as natural- born Eng- lifhmen 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 AIva*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 permiflion and approbation, and introduced fome valu- able manufadures into the kingdom, yet were not capable of becoming purchafers of land in it. And the cafe was the fame with refpedt 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, Englar Englin as tho( Englan a foreij purchai of the ( patent < which ] French becaufe the fore the rig! EngliOii thefe lei indeed, for our 1 foreigne make pi tain, as native E procurec purpofe, more an patent of beth's tir '4 t I 3®3 1 England, thofe children were natural-born Englidimen and might purchafe land as well as thofe whofe anceftors had been fettled in England from time immemorial. And even ^^. *^« *'"»*»- a foreigner might be rendered capable of reigners by ' purchafing land in England by the favour lerspa"tentl!^' 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 Englilhman. 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 Engliflimen, have, for many years paft, procured private ads 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 i ^. I li'. M' r I ; 4 « 1 1,* •••II.'- I •> .•« *m^r- ■, 3t t 304 1 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 dated that one Indy, wlio wa6 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 Hft will to his wife, who was an alien, or foreigner, but who had, before the death of her faid huiband, been made a denizen by queen Elizabeth by her letters patent under the great feai ; and that the faid woman, after the death of Indy, had married a man of the name of Page, who thereby became poflefTed of the ^id houfes in her right; which gave occafion to the law-fuit there reported by Lord Coke. This caufe was determined in the 30th 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 (liould be feveral,) 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 wiih me in confidering a$ a matter of curiofity well worth our atten- tion before we proceed further in the view of Calvin's cafe, which turns upon the dodrine of alienage and the diAindion to be made between foreigners and natural-born fubjedts. It is contained in the old coUedion of reports of law-cafes called the Year-books, in the reports of the cafes in the 9 th year of the reign of king Edward the 4th, in Trinity term, page 8. In that year of king Edward the 4th, two perfons, whofe names were William Swirenden and John Bagot, brought k. Edw! 4"° an adion at law called an aHife, againft one Thomas Ive for diffeifing them (or turning them out of the pofleflion) 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 f\id Vol. II. R r John The cafe of Ba^ot and /y? ; in the 9th year f ■*;' l^' ( 3o6 ] John Bagut ought not to he allowed to main*- tain his writ of aflife againd him, becaufe the laid John Bagot is a foreigner, born out of the ligeance, (or obedience) of the king of England; and, as to William Swirenden, the other plaintilF, he alledgcs that he never had been feifed (or pofTefled) of the faid office of clerk of the crown in fuch a manner as to be capable of being dilTeifed of it, and that, if he had been fo feifed of the faid office, he, the faid Thomas Ive, had not diffeifed him of it, or molefled him in the enjoyment of it The words of his plea with the defendant yohanms Btgot eft alienigcna^ genitus et natm Ive in abate- . \ f* <• i • • > a f • v nent of the ^xtrd Itgeanttam domint regts Anglja^ vtae- brough^t b^*'** //Vrf, apud Ponuteys infr^ regnum Francta Oie plaintiff Juh obedientid Caroli nuncupantis fc regent Francia^ adverfarii et magni inimici domini regis Anglia. Et hoc paratus eft verificare, Unde^ quoad prcediSium Johannem Bigots petit judicium de brevi fradiSto, In reply to this plea, of which he docs not deny the truth, John Bagot fays that the late king Henry the 6th by his letters patent under the great fcal of England, bearing date at Weftminfter on { 307 ] on the 3d day of November, in the 37th 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, fhould be, for the future, natural-born fubjefls and liegemen of the faid king and his heirs for ever, and fhould be fo allowed, treated, and confidered 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 dourt the faid letters patent themfeives, whkh were in the words following. HenrictiSy Dei gratia, rex Anglia et letters patent -_ . J . ,-., . ., . of deiiixation, rrancKSy et aommm Hiuermce, ommmis ad granted to quos prcefentcs litcra pervenerint^ falutem. ic"^VcnP\he Nil > /, n A • f 6thinthc37tji SaattSy quod de gratia nojtra fpectali, et year of h:i pro bono J'ervitio quod dileSius fervitor mfier^ '^'^"* 'Johannes Bagot, in ducatu noffro Normannia mundus, nobis impendit et impendet in JutU" rum, conceJJitnuSy pro nobis et h^redibus noflris, quantum in nobis eft, prafato Johajiniy ^od ipfe de cater et omnes baredes Jul, de corpore R r 2 ftiQ ^'■',^fif ^\m .1 ^ % To be confi- dered and treated as a natural'born fubjcA of the king, born within the kingdom of England. Power to bring a£lion» of all forts in the king's courts of juf- tice. Power to pur- chafe lands. [308 1 fuo procreati et procreandi^ ftnt indigena et Ugei nojiriy et quilibet eorum fit indigena et ligeus nojlery et haredum noftrorum 5 et quod ipfi in omnibus tra^eniut, repufenturj habe^ aniur, teneantur, et gubernentur^ ftcut Jideles Ugei noftri infrh regmtm Anglia oriundi^ et quilibet eorum in omnibus traSletur^ reputetur, habeatury ieneatur, et gitb^ netur tanquam ligeus nolier infrh diSlum regiium nojlrum Anglic oriundus, et non aliter nee alio modo, — Siiodque idem Johannes et omnes hujufmodi haredes fui, et eorum quilibet ^ omnimodas ac- tiones, reales, perfonales, et mixtas^ in omnibus curiis, locis, et juriJdiSlionibus, 720/iris habere et exercercy eifque gaudere^ ac eas in clfdem placitare, et implacitariy refpondere et refpon- deriy defender e et dejendiy pofftp' ct pojfity in omnibus et per omnia, ficut Jideles ligci nojlri in di6lo regno noftro Anglia: oriundi^ - Et ulteriiiSy quod di^us Johannes et haredes fui pradidli terras^ tenementa, redditus, fer^ vitia, reverfiones^ pofjeJfioneSy qucecuuqut, infra regnum nojlrum A/iglia et alia domiitiu r,olfray perqjiirerey capere, recipere, habere^ icnerey et poffiderey ac eis uti et gaudere fibi et hare- dibus fuisy imperpetuumy vel alio modo 5 et ea darey [ners. [ 3<^$ I Jiiret vemicrey alienare^ ac ligare, cuicunqtie ferfona ftu quibufcunque perjotiis fibi placuertt^ licit^ et irrtpun^ debeant^ poffint^ et 'vnJeant^ et quilibet eortim debeat^ pojjit^ et valeat, ad libitum fimmy imperpetuum^ adeo liberd ct quietly integr^i et pacifice, Jtcut debeat, pojfit^ et vale at' aliqiiis ligeorum mftroritm infrd, regnwn no/it itm Anglia oriundorum.--''^^Et Rxemption quod prafatus Johannes et omnes bujuftnodi ties payable hccredcs fitly de cater o in Juttirunu colore ^ feu fo^cfgr''"''' ^"^ vigorcy alicujm ftatuti^ ordinationisy feu con'- ceffionis fa^la 'vel Jacienda^ non arSientur^ teneantuvy Jeu compellantur^ nee aliquis eorum ar^etuvy teneatur^ feu coMpellatuty ad fol- 'vcndumy danduniy vel faciendum^ aut fiip- portandum, ?iobis velalicui haredum noftrorum^ J'ju ciiicimquey aliqua alia cuflcmasy fiibfidia^ taXiiSy talUigiay jeu alia oner a qucecunque^ pro bonis, marckandifiSy ierrisy Jeu tenementis^ I'd pc:jci::s corum^ aut alicujus eorum, pra- tcrqiic.m tali a et tanta qualia et quanta alii fuie/es ncjlri, infrd didlum regnum m/irum Anglice oriimdiy pro bonis, marchandifis, tern's, tenemc/7tisy feu petfonis fuis propriis, fohunt, danty jaciunt 'velfupporta7ity aut fohere, dare, jccere, et fiipportare confueverunt et tenentur ; fed t '■ «, %' lii ^ V [ 310 1 fed quod prof atus Johannes et haredes fui pra^ diSii habere et pojjidere valeant^ et quilibet eorum habere et pojjidere valeat^ ac habeant et pojjideant^ omnes et omnimodas libertaies, fraU" cheJiaSy ac privilegia quacunque^ et eis uti et gaudere poffint et pojjity infra diSium regniim mftriim Anglics et jurifdiSiiones [ejufdem\ adeo libere, et quieti, integre et pacifoe^ ftcut , cateri Jideles liget nofl, i infra re:^num nofirum Anglice oriundi^ habere et pojjidere^ uti et gaudere debeant, ab/que perturbatione^ mo» lejiatione^ inquietationey impetitione^ impe^ dimentOi vexatione^ calumr^idy feu grava- mine quocunque nojiri vel haeredum nofirorum^ juftitiariorumy efchaetorum; vicecomituniy aut aiiorum officiariorumy feu minijlrorum nojlro* runiy vel hceredum nojirorum, quorumcunque ; et abfque fine et feodo inde quovijmodo ad opus nojirum capiendo feu fohendo:^—^ cfaufeof /Vo« jUiqufbus flatutis. ordinationibusy aSiibus. iiatutes, &c. provtjtontbusy Jeu proclamattombusy m con- trarium ante hac tempora faSiiSy cditisy ordinatisy provi/tSy feu proclamatisy aut im- pqfterum faciendisy aut quod pradiSius Jo- hannes Bagot in diSio ducatu nojlro Nor- mannia fuit oriundusy aut aliqud [alia] catifdt to the con trary ta til not and fyno] be tr< natura and h adioni courts childre acquire ner as and 4th be exea duties p; goods ir to the ( f 3'x J ^efte Me tpCo af,^j Tj^r frictf,m feptin^ ' ""'""■'i"' "ofiri of them is to grant to the k;7f ,. '""P°" '7'\P°'por. four folIowi„g%:X: ?, • ^°'**' -4".et- four following phX;:^''"^"'^ ^4^ general terms, that hi 1 u '^"' '^' I« '"'"'' natun.]-bor„ Eng,ifl,n,e„ ,71^? "\='^ «nd his children fhaU have T-'u " ^^ anions of every Z^' .^l P '^ courts of juftice; ,dlv rf u ^"^'"^ children Lli be at Jt , ^' ""'^ ''''' -quire. ,a„d in El,trL7r'^^^' - - as ff they had b^;: ct t:r r ''nd4%. That he and hi i", "^'and; ^ exempted f«m L u '^'''''■'" '^^'I ^«- pafd b, ar„s':^?e;';. ""^'■'^'■"-^ goods into England aC m TP""""""" ^^ rei»ners :en * ! t 3^2 ] reigners reliding in England were liable 3 of which four privileges the three lad: are con^ tained in the firil, and are pnly fpecifications of the principal fubjeds to which it might be applied. Thefe letters I muft alfo obferve that in the report of called ir^the that cafe of Bagot and Ive in the Year- 2?/" *«/°»/*/ ^o^^s, thefe letters patent are called letters Ugitimation. patent of kgittmatwi, though the more ' ' : modern name for them is that of letters pa- * .'.'., XQni oi denization* .... . . An ab(lra£l of Calvin*s cafe, in the 7th book of Lord Coke's Re- ports. Having premifed thus mucli concerning the law of alienage, and the necefilty of letters patent of denization in order to enable an alien, or foreigner, to purchafe land in England, I will now endeavour to flate to . you a fhort abftrad: of Calvin's cafe, which relates iingly to this dodrine* In the 6th year of the reign of king James the iirfl: an adion at law, called an affile, was brought by the guardians of an infant gf three years of age whofc name was Robert Calvin, in the' name of the faid infant, againft two perfons named Richard and Nicholas [ 313 ] Nicholas Smith, for a freehold houfe in tlie parifh of St. Leonard, Shoreditch, near Lon- don, of which it was faid they had diffeifed (or difpoflcfled) the iaid Robert Calvin. To this complaint the faid Richard and Nicholas Smith fay, that the faid Calvin has no right to bring the faid adion, and that they arc not bound in law to anfwer his complaint, be- caufe he is an alien horn^ having been born at Edenborough in Scotlaud on the 4th day of November in the 39th year of the reign of the then reigning king, James, over his kingd' a of Scotland, and in the 3d year of his r- >ver his kingdoms of England and Ireland 5 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 anfwer to his faid adion. And this is the Vol. II. ,§ s quedion •*: ' Plea of alien- age, in abate- ment of the writ of afllz« brought by the plaintiff Calvin ; be- caufe of his birth in Scot- land fmce the acceflion of king James ta the crown of England. Allegation that Scotland and England are governed by different laws. Replication of the plaintiff Calvin. w3 <*■ -Ki' *;* I 3H ] The qiicrtion qncftion which is left to the declfion of the reiuhing / therefrom, for judgcs^ vvhich is, ill Other wofds, whether, thedecidonof >- , • o ^i j /« i the judges. Of "Oj pcrlons Dom i»i Scotland fince the acceOioii of the king of Scotlapd to th^ crown of England, (who were, upon that : ! occafion, called pojlnatij could maintain .-. adtions for lands in England, which it was • confefled on all hands that perfons that were • born aliens, and under the allegiance of a I , 7' foreign king, could not do. r f 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 atlafl determined by the lord chancellor and twelve of the judges in favour of Calvin, the plaintiff, to wit, that he was 7iot to be coniidered as an alien born, but as a natural- born fubjedt of England, and might poflefs land in England, and maintain an adion for the recovery of it. . Of the difEi. In the courfe of the arguments delivered in allegiance to this caufc there was a great deal faid upon the menti?ned°fn ^0^^^^"^ of allegiance, and whether or no there thcpieaof the could be two kinds of allegiance to the fame deiCndants. ^ king, the her, the th^ that itain was were of a [ 3'5 ] 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 diftindlion fuggefted in the defendant's plea, And it was determined that there could not 5 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 refpedl to the privileges that belonged to the latter birth in the kingdom of England. But the reafons alledged by Lord Coke as the grounds of this opinion do not appear to me very fatisfadlory, and were not efteemed fo by many of the lawyers of that time. However, as this matter is not much connedled with the fubjedt of our prefent inquiry, which is the power of the crown of England over countries acquired by conqueft, I fliall fay nodiing further about it. 1 ■I ^! l&j After difcufling 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 Ss 2 of I ! i: Of the confe- quenccs that Tclult from the difference of the laws that prevail in the two kingdoms of England and Scotland. Of the points in which the two kingdoms were become united, and thofe in which they ftill con- tinued fepa- rate. [ 3'6 ] of argument fuggefted in the defendants plea, the judges proceed to confider the other ground of argument fuggefted 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 fubjedls to their king, not by the laws of the land, but by the law of nature; and therefore that, as the law of nature (which is the foundation of allegiance,) is the fame in both kingdoms, the diverlity of the laws of the two kingdoms in other refpcdts is of no im- portance with refpedl to the dodrine of alle- giance, and to the privileges of a natural-born fubjed 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- cefTion of king James to the crown of Eng- land, and in what points they ftill continued feparate ; and determine thai they continued feparate with refped to their laws, their par- liaments, and their bodies of peerage or nobility. They Ti natun of h\ confid and h alien fubjed the ki namelj enmity priviles feveral it is th£ concerr Lord ^ mentioi better j faid pai paragra it make " Eve born, alien is or an en^ alien em { 3^7 ] They then, in the 4th place, confider the Of tlie diffc- nature oi alienage ^ and lay down the rules aliens.^ of law upon this fubjedl 5 as> who is to be confidered as alienigenay or an alien bortii and how many kinds of aliens there arc, as {ilien amySy or alien Jriends^ namely, the ' ' fubjedts of princes in alliance, or amity, with the king of England j and alien enemies^ namely, the fubjedts 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 paflage above- mentioned. And here, that you may the better judge of the drift and meaning of the faid paflage, 1 will recite to you the whole paragraph, or head of argument, of which it makes a part j \yhichh is as follows. - cc Every man is either alienigena^ an alien- The whole born, or fubditus, a fubjedl-born. Every Cok?*u*J)on ' alien is either a friend that is in league, &c. '^*^ fabjeft. or an enemy that is in open war, &c. Every alien enemy is either pro tempore, temporary for i ■' 'i ii' * ■ ¥4 ■"? 'U .•,,vi or alien friends. f 3'8 I for a time, or perpetuus, perpetual, or JPecU aliter permijfusy permitted efpecially. Every futjedl is either natus^ born, or datus, given or made : and of thefe briefly in their order. An alien friend, as at this time, a German, a Frenchman, a Spaniard, &c. (all the kings and princes in Chridendom being now in league with our fovereign ; but a Scot being a fubje<Sl, cannot be faid to be a friend, nor Scotland to be Jblum amici) 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 Englifliman, and may maintain any adion for the fame : but lands within this realm, or houfes (but for their neceflary habitation only) alien friends can- not acquire, or get, nor maintain any adion real or perfonal, for any land or houfe, un-? lefs the houfe be for their neceflary habitation. For, if they fliould be difabled to acquire and maintain thefe things, it were in efledl to deny unto them trade and traffick. which is the Of aliens, that life of every ifland. But if this alien become wemi^r'^^'^^ an enemy (as all alien friends may) then is he utterly difabled to maintain any adlion, or cr get any thing within this realm. And this is to be underftood of a temporary alien, that, being an enemy, may be a friend, or, being a friend, may be an enemy. But a Of aliens, that perpetual enemy (though there be no wars enenScsf ** by fire and fword between them,) cannot maintain any adtion, or get any thing within this realm. All infidels are in law perpettd Of lofidcjs. immid, 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, (whofe fubjeds they be,) and the Chriftianj there is perpetual hoilility, and can be no peace ; for, as the apoftle faith, 2 Cor. vi. 15. ^la autem conventio Chrifti ad Belial y aut qu^ pars jideli cum injideli? and the law faith, Judceo Chrijlianum nullum ferviat mancipium : nefas enim eft quern Chrijlui redemit^ blafphemum Chrifti infervitutis *vinculis4etinere. Regifter 282. Lifideles funt Chri/li & Cbriftianorum inimici. And herewith agreeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any adtion " at all. [^tcere.] And U V (■■ im Of the laws of conquered countries. OfaCkriilian coiwtrythatis ■onquered. Of an Tnlidel country that is conquered. Ofthclawsof a kingdom that accrues to a king by defc^nt. [ 320 ] '' And upon this grdlind there is a diverfi^ between a conqueft of a kingdom of a Chrif- ttan king, and the conqueft of a kingdom of an Infidel. For» if a king come to a Chriflian kingdom by conqaefl, feeing that be hath vita & necis pQteftatem^ he may at his plea- fure alter and change the laws of that king- dom ; but, until he doth make an alteration of thofe laws, the ancient laws of that king- dom remain. But, if a Chriflian king ihould conquer a kingdom of an Infidel, and bring them under his fubjedion, there ipfofa^o 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 Decalogues and in that cafe, until certain laws be eflabliilied aniongit them, the king, by himfelf, and fuch judges as he (liall appoint, fhall judge them and their caufes according to natural equity, in iuch ibrt as kings in ancient time did with their kingdoms, before any certain municipal laws were given, as before hath been faid. 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 chan£ Vol. r 3^1 1 change thofe laws of himfelf, without conf^nt pf'parliamcnt. Alfoif akinghathaChriftian ^Mhe Icgif. kingdom by conqucft, as king Henry the rii7over"lrc. 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 cale, while the realin of England, and that of Ireland, were go- verned by feveral laws, any that was born " in Ireland was po alien to the realm of Eng- land. In which precedent of Ireland three things are to be obferved : i . That thea there had been two defcents, one from king llenry the 2d to king Richard the jfl, and an- other from king Richard to king John, before the alteration of the laws. 2. That albeit Ireland was a didind dominion, yet the title thereof being by conqueft, the fame by judgement of law might by exprefs words be bound by ad 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. Tt King's .< ! I '''<^.' > ' End of the pa- ragraph cited from Calvin's cafe. Remarks on the faid para< graph. r 32a J Kings Bench of Ireland. Furthermore, irt the cafe of a conqucft of a Chriftian king- doin, 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 fubjedts, as well antenati as poftnatiy are capable of lands in the king- dom or country conquered, and may main- tain any real adtion, and have the like privi- leges and benefits there, as they may have in Eiigland." v ^ ( - > < You fee that ths principal defign of Lord Coke in this whole paragraph is to fettle the proper diftindlions 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 introdudtion of the dodrine of the fubjedion of conquered coun- tries to the Crown is foreign to the fubjedl under confideration, and arifes merely froni ^e mention of the diftindtion between alien enemies that are Chriftians and aliens that are unbelievers in Chrifti^nity, and is intended ' - nierclv r 323 I hierely to confirm that di(lin(ftion by (hewing that a like didinftion takes place with refpe^ to the laws of a Pagan and a Chridian country upon a conqueft of them. The author's view is not to (hew that the king of England alone (in contr^didindtion to the king and parliament conjointly) has the power of alter- ing the laws of a conquered country in either cafe ; but to declare that» upon the conqued of a Pagan country by the crown of England, all the laws of the country are indantaneoufly aboli(hed by the mere conqued itfelf, without any declaration of the Crown for the purpofei whereas, upon the conqueft of a Chriftian cbuntry, the old laws continue in force until they are exprefsly aboli(hed by the conqueror. This is the main propoiition here laid down by Lord Coke : and this propodtion* is judly ridiculed and rejeded by Lord Mansfield, as illiberal and extra-judicial, and as having been mod defervedly exploded. Now it is certain that, if this main propodtion, concerning the different fates of the laws of Chridian and Pagan countries upon a conqued by the crown of England, is extra-judicial, the incidental declaration contained in it, concerning the T t 2 king's The principal objeAofLord Coice in the faid para- graph. The main Eropofition of .ord Coke in thisparagraph is extrajudi- cial. So likewife is the incidental declaration contained in it, concerning the legiflative authority over conquered countries. ., ^if -I' .■ , '! % f^ king'^ power of making new laws in the MA i^onquered countries, is no lefs fo, having not the fmalleft connection with the only queftion in the caufc then under confidera^ tion> which was, whether a person horn under the king*s allegiance in Scotland fince the king's acceffion to the crown of England, was ta be coniidered as intitled to the fame privileges of purcha^ng land, 6zc, in England as if he had been born in EngUnd. Upon And therefore this ground, therefore, of its being extra- judicial, it ought to be treated with little little regard. regard, as well as the other opinion concern- ing the laws of Pagan and Chriftian coun- tries, which Lord Mansfield treats with fo much contenipt. But, fttch as it is, it does noi favour the o- pinion of the permanent authority of the Crown to makelaws for conquered countries. But, befides the circumftance of its being extra-judicial, we may obferve that the words of this declaration leem to relate only to the power of fettling the laws of a conquered country once for all^ immediately upon the conqueft of it, and not to the permanent /<?- gtjlatime authority over it, or the perpetual power of making and altering its laws when- ever the Grown ihall think it ricceflarv. For • - thefe [ 325 ] thefe words (omitting what is faid about the conqueft of Pagan countries) are as fdtows. •* If a king come to a Chriftian kingdom by ArepetUJonof conquelt, leeing that he hath vit^ et necu contain the pote^atem, [that is, the power of life and SST* 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 Chridian kingdom by conqueil, as king Henry the 2d had Ireland, after king John had given unto them, being under his obedience and fubjediion, the kws of Eng- land for the government of that country, no fucceeding king could alter the fame without parliament." " In which precedent of - Ireland it is to be obferved, that, albeit Ire- land was a diftindl dominion, yet, the title ^ thereof being by conqueft, the fame by judge- ment of law might by cxprefs words be boo nd by a<5l of the parliament of England." Thefc three fliort paflages are all that relate to the legiflativc authority to be exercifed over con- quered countries. And they leem to me to '^^'•'^ propofi. contain tnele two propolitions j to wit, i Ir, contained in That immediately after the conqueft, the ^^.^^^i^^^o^'i*' king f.i ^m n .,,111 Mi: S ;'■*■■• '. I? *« f 326 ) king aiohe, Without confent of parliaments having the power of life and death over the conquered people, may chufe v^hether he will permit the old laws of the conquered country to continue in force^ or whether he will abolifh them and introduce the laws of England in their flead $ 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 pofTefied of the permanent right of legiflation over fuch countries i which is a concluiion dl- The latter of redlly Contrary to that which Lord Mansfield deduces from thefe celebrated and much-* agitated paffages. . , the faid two propofitionsis contrary to Lord Manf- field^s opi- liion. 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 paffages from Lord Coke's report of Calvin's cafe, as they were quoted in Lord Mansfield's judgement. But L thought it was worth while to mention it a i^cond time after the i 327 ] the account 1 have been giving of that cafe, and the recital of the whole paragraph and head of argument in which thofe pafTages occur, which has enabled us to jud^e better than we could at firft of the true drift and meaning of thofe paflages, and of the ftrcfs it is reafonable for lis to lay upon them. We may now therefore conclude, from fufH- cient grounds and premifTes, that this extra- judicial opinion of the judges in Calvin's cafe is not a very weighty authority upon this fubjedt, and that, fueh as it is, it makes ra- ther againft than for the dodtrhie of the fole 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 fhe report of which thefe pafTages concerning conquered countries are contained. For it has not only been matter of amufement to me, but has enabled me to, form a more politive and better-grounded opinion concerning the meaning of them, than I could have done ^yithout it. And ^he refult is, that I am confirmed in the opinion. Conclufion* concerning the opinion of the judges contained m the foregoing pafTageofLd. Cokeys reboot of Calvin s cafe. :;.'! I m iuK ?:'m •»> M' I 3*8 J opitHon r originally formed concerning them, when you firft mentioned them as cited by L^ Mansfield, and which, I am pleafed to fee, agcees perfedly with your manner of Underilaqding then^. 1 have nothing, there* fore, further to fay concerning them but that I am extreamly furpri^ied that Lord ManA field, or any body elfe, fliould ever have cited thefe paiTages m Calvin's cafe as a proof of the permanent legiflative authority of the Crown over conquered countries, when, in ti'utbb th«y contain a plain denial of it, in thcife wofds whicia declare, that, when once ldn,2 J<^n had granted to the conquered people of Ireland the laws of England for the government of that country, no fucceed* inp; king could alter the fame without parlia- ment. This is a master which, I confefs, furpriz^s me, and which I cannot eafijy account for. r - ENGLISHMAN. Nor can I with amy degree of certainty. But it feenis to have arifen chiefly from the want of the necefTary diflinftion, which we Heid's having made fome time ago when we were confider-: ciied the a- forefaid paf- ing what Loid Mansfield had faid concern- lagt fromCal- vin's calb in ^'^S fuppon of the king's fole legiflative authority over conquered coMn- uicsj though in truth it makes againft the faid authority. A conjeflure concerning the caufe of Lord Manf- jng ducii ad c quefl and legifli and u at pl< Coke to the king i we hi fiderat you h concer this ai perfed queftic r 329 1 ing Ireland, between the power of intro- ducing into the conquered country, by a fingle a(fl 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 pieafure, 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- iideration of this famous authority : — unlefs you have ftill fomething further to offer (x>ncerning it. •,j J (ill FRENCHMAN. I have nothing further to offer concerning this authority, with refpeft to which I am perfectly fatisfied. But I have one hiftorical queftion to propofe to you concerning the cafe itfcif in which this authority occurs; I mean, Calvin's cafe. 1 think vou faid that the decifion of that cafe had given offence to many people in England, and been con- iidered as an effc<5l of the fervility of the Vol. II. U u judges li .nil M ) \.\ \ Ufl Of the con- cern ihewn by K. James the ill to have his Scotch fub- jedls, born af- ter his accef- iion to the crown of Eng- land, confi- dered as na- tural-born £nglifhmen* Commifllon- ers are ap> pointed by the two kingdoms to treat about an union of the fame. In 1603. [ 330 ] ' judges who decided it, and their difpofition to fall in with the wifhes and humour of the court. Now I (hould be glad to know what intereft king James the ift could have in the decilion of that caufe, and why he fhould be fuppofed to have taken any concern in it. ENGLISHxMAN. 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 fubjeds, the people of Scotland and the people of England, in as many points as poflible. In compliance with this ftrong defire of the king, an adt of parliament was pafTed in England in the firft year of the king s reign, by which certain commiflioners of England were appointed to meet with commiflioners of Scotland, and to treat with them upon this fubjcdt -, and in the end the commiflioners were direded to prepare three fchedules, or copies in writing, of fuch pror politions pofit furth copic anot( the The ingly in a chamt that \i togetl: they r tions ( themi Engla] redtior fchedi prefeni Egerto time Ic one o this tre firft da in the the ift, himfelf [ 331 3 politions as they fhould 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 commiflioners of both nations accord- ingly met in the king's palace at Weftminfter, in a large room there > called the painted chamber y in the fecpnd year of the king's reign, that is, in the year 1 604, and treated long together upon this fubjedt ; 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- redtions which had been given them. The fchedule for the parliament of England was prefented to the parliament by Sir Thomas Egerton, Lord EUefmere, who was at that time lord high chancellor of England, and one of the commiflioners for England at this treaty. It was prefented by him on the firfl: day of the feflion of parliament holden in the third year of the reign of king James the I ft, or in the year 1605, before the king himfelf, the Lords fpiritual and temporal, Uu 2 and Proceedings of the faid commifnoners in the year 1604. Their propo. fals are pre- fented to the Englifli par- liament in the year 1605. 1i' , r •>t y\ ■;■■ .' ; I* Wi J!.; 'm •.::< [ 332 ] and the Commons of England, who were all alTembled in the upper houfe of parlia* ment. But the confideration of th^it fchedule was, by another a(fl of parliament made in that feffion of the 3d year of king James's reign, deferred until the then next felHon of parliament, . Andaretaken j^ the faid next fefllon of parliament, into coniide- ration in the which was held in the 4th year of the reign yeari6o(). ©f 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 confifled of thefe four propofitbns j to wit, propofals/* ifl. That all hoflile laws of either nation one againfl the other, might be abolifhed ; and thefe laws were enumerated in the fche- dule s 2dly, That a certain courfe fhould be taken for the facilitating of commerce and merchandizing by the merchants of both . nations, both with each other and with fo- reigners J and '3dly, That the common law of both nations fhould be declared to be, ^ that all perfons born in either kingdom /«^^ his Majefly's acccfilon to the crown of Eng- land I 333 ] land were to be contidered as natural-born fubje(5t6 in both kingdoms; and, in the 4th place, That ads of the two parliaments of England and Scotland (hould be pafTed for the benefit of all peribns born in either king- dom before his Majefty's accefiion to the crown of England, fo as to make them alfo be con- (idered as natural-born fubjedts in both king- doms as well as thoie perfons who were born Jince the faid acceffion; but with certain cautions and redridtions with refped to the privilege of holding great offices under the Crown, and offices of judicature, and of hav^o ing voice in parliament, and with a faving of the king's prerogative. ,U i ri' ■ t 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 Painied-chamber -, and, in efFe<St, they agreed to give way to the fubftance of them. But, as to the third article, the Commons could not affent to declare the law in the manner there- in propofed j and thereupon they appointed a committee of their own members to confer The houfc of Lords has conferences with the houfe of Commons upon the laid propofals. TheCommons objed to the third propofl- tion of th« coBimiflaoners, concerning the foji nati. ( ' '■:. W i ,-,p ill The judges deliver tneir opinion in fa- vour x)f the fofi nttti. t 334 ] With a committee of the Loi-ds concerning this article j who, accordingly, met for this purpofe on the 25th day of February, i6o6> in the Painted-chamber, In this conference Sir Edwin Sandys delivered the principal objedtions of the Commons to the faid third propodtion concerning the pcji nati, and the Lord Chancellor Egerton was the principal fpeaker on the other fide of the queAion. 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 of the poft nati. The judges who fpoke on this occafion, 'were Sir John Fopham^ the lord chief juftice of the King's Bench, Sir "Edward Cokey chief juftice of the Common Pleas, and Sir I'bomas Flemingy chief baron of the Exchequer. The other judges, who declared that they agreed with thefe three in opinion, were feven in number; and their names were Juftice Fenner^ Juftice Williams and Juftice ^anfield, 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 AUham^ barons of the Exchequeri^ So that there were ten judges in all, who concurred in this opinion. Thefe were all the judges that were prefcnt on this occallon, 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 dedgn of uniting the two nations in as many points as poflible, but becaufe it confirmed the opinion which he himfelf had been taught by his crown-lawyers to enter- tain upon the fubje(^, and which he had, 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 commiflioners of the two nations, and propofed by them, in their third propolition, to be fo declared by parliament, are alledged by Lord Chancellor fUlefmere, in his argument at the conference upon this fubjedt between the two houfes of parliament, to be ftrpng reafons for declaring this King James had alreadf declared his opinion in fa- vour of the poft nati by a proclamation* £-^. This circum- ftance was urged by the Lord Chan* ccllor to the houfe of Com- mons, as area- Ton for declar- ing the law CO be fo. :;*H t id M 't t '■I ,' ;i 1 , \ m. ^ *•..;! It feems pro* |>able that this reafon mi^ht Ibmewhat in* iiucnce the opinion eiven by thejadges. t 336 J tliis opinion to be agreeable to law, unlefb it (hould be moft clearly contrary ^ it ; it not being for the king's honour that his declared ojunion (hould 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 o(ihefoftnati\ unlefs they had thought the law to be clearly otherwife beyond ail poffibility of doubt. ■.. * TheCommons were not con. vinced by the opinion of the judgei. The king mentions the ibbjefl in a fpcech to the ^filament, lome weeks after the de- livery of the faid opinion of the judges Faflages of the king's fpeech, xehting to this f^bjeA. - But, whether the judges aded partially or impartially in delivering this opinion, it is certain that it did not convince the houfc 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 31ft 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 paffages. " But for the Poft natty your own lawyers and judges, at my firft coming to this crown, informed •' me, there was a difference between the JJ jdfUe and the Po/t Nati of each kingdom : ' /: ■ . " which cc t* Cff « « <c <l <c ct «l C( <c <c cc c< c cc <c cc cc <c <c cc cc cc ce [ 337 ] which caufed me to publifh a proclamatloa that the pofinati were naturalized, ipfo faSlo^ by the acceirion to the crown. I do not deny that judges may err, as men ; end therefore I do not pfefs you here to fwear to all their reafons : I only urge, at this time, the conveniency for both king- doms, neitlier prefling you to judge nor to be judged. But remember alfo, it is as polTible, and likely, that your lawyers may err as the judges. Therefore, as I wifli you to proceed here in fo far as may tend to the weal of both nations, fo would I 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 diigrace both your king and your laws : for the doing of any adt 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 wherein the law is thought not to be cleared (as fome of yourfelves do doubt that, in this cafe of the pojincitiy the law of England doih Vol. II. X X " not % t 338 ] not clearly determine,) then in (Uch a queftion, wherein no pofitive law is refo- lute, rex eft judex i for he is lex loqiiem^ and is to fupply the law where the law " wants." By thefe paflages in this fpeech of king James we may perceive how anxious the king was to get this point relating to the pqftnati fettled in their favour. , , (C <c (C Names of the ^he lawyers who argued on the fide of lawyers who ' ° ^ argued for the the houfe of Commons in the, conference Commons at . . , . ^ r t j i. r 1 the conference With the Committee oi Lords, before the LorV^* judges delivered their opinion, were Dod- ridge, the king's foUicitor general, (who was afterwards a judge,) and La>vrence Hyde, (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 profeffors of the Common Law, according to the expreflion of Serjeant Moore, (from whofe reports the foregoing account of this proceeding is taken) that is, as I fuppoie, ferjeants at lav/ ; which degree of ferjeants is the higheft degree of learning that belongs to the profefTion of an advocate, or barriiler at v.. ill [ 339 J at law, in England. You fee therefore, by thefe refpedtable 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 pojlnaii, and likewife how warmly it was agitated and contefted, as a matter of capital importance. In (hort, after all thefe debates and opinions and fpeeches, the Houfe of Commons adhered to their firfi: opinion, and could not be brought to confent, either, to declare by an adl 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 tp alter the law, and make it fo for the future. But the thing went off at that time, and the third proportion of the commilfioners of the two nations did not take effeft. The Com^ mons, however, agreed to abolifli the hoftile laws that were then in being againft the Scots, and an adl of parliament was accordingly pafled for that purpofe. :■-. ^ 11 The Com- mons ndhered to their firlt opinion not- wiihltanding the opinion of the jud^os. Eiit they a- 9, iced to ;(bo- lifh the hollile Imws ;iV,niult Scotlarid. X X 2 This f '.I iH The alFair of the pojluati was revived two years af- ter by Cal- vin's cafe, in the year 1608 J and then was dccerniined judicially in favour of the pojinati. The judges were blamed for this deci- fion, as hav- ing been in- fluenced by a dciire to gra- tifyK.James*s humour. The words of Mr. Wilfon, the hiftorian, upon this fub' jcft. [ 340 1 This affair of the poftnaii feems to have reded here for about two years, and was then revived by the adion above-mentioned brought in the name of the infant, Robert Calvin, againfl Richard and Nicholas Smith, for the poffeffion of a freehold houfe near Lon- don 5 and was then determined in a judicial manner by the refolution of the judges in favour of the pojinati; which refolution has ever fince been allowed to be the law upon this fubjedt. But tlie judges on this occafion were fuppofed by many people to be influenced by a defire 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 poftnatiy he has thefe words. The parliament only feared, that the king's power would have fuch an influence upon ** the juJges of the kingdom, that the Scots " would C( <c r^: f-- t 34' ] would be naturalized too (bon ; (they were rcfolved not to be acceflary to it -,) which " indeed fome two years after was confirmed in Calvin's cafe of pqft^natiy 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- dom, in the Exchequer-chamber, though many flrong and valid arguments were brought againfl it. Such power is in the breath of kings, and fuch foft fluff are " judges made of, that they can vary their precedents, and model them into as many fhapes 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 ifl, and is the mofl copious hiflorian that is extant of the reign of king James the ifl. We may therefore reafonably believe that the cenfurca he here pafl'es upon Lord Coke and the other judges, on account of their decifion of Cal- vin's cafe, were fuch as he had often heard beftowed upon them at the time of that tranfadion by the popular men of that age. — This (( (( cc C( (C (( (C <c (C « (( C( C( ! (4 «; , .jj, r 342 I This is the beft account I am able to give you of the occafion of the difTatisfadion 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 End of the their having decided this queftion in the account oFtHc affair of the manner they did, from z uefire to gratify f-^"'^'' the king. . • " FRENCHMAN. I am obliged to you for the trouble yoir have taken to fatisfy my curiofity on this fubjed, and have now nothing further to afk concerning it. We may therefore now return to the original fubjed of our inquiry, to wit, the power of tb*^ Crown to make laws for the inhabitants of conquered coun- tries, if there remains any thing further to be faid upon it. I therefore beg you would refume the confideration of this queftion. ENGLISHMAN, I would do lb with pleafure, if the fubjed were not exhaufted. But I believe we have gone through all the branches of Lord Manf- fieid's argument in fnpport pf the fole legifla- tive i. [343 ] f 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 fubjedt. For, as to my own opinion upon it before that decilion 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 fatisfadion of finding that you intirely agreed with me in both, and even anticipated fome of the latter. What efFe(fl the mere authority of Lord Mansfield, fitting in his judicial capacity, as chief juflice 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 fhall not do it. This is too important a point to be fettled by a fingle decilion of a court of juflice, or, perhaps I ought rather to fay, by the opiiiion of a fingle judge. For, by what you flated to me of that • !l \ \ An inquiry, whether the opinion of Ld. Mansfield concerning the power of the Crown o- Tcr conqaerM 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. r 344 1 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 Mancfield in opinion upon that firfl point of the caufe. For, (incc, as Lord Mansfield cxprefsly 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 legiila- tive authority over the ifland of Grenada immediately after the conclufion of the treaty of Paris in February, 1763, had neverthelefs precluded himfelf, by his proclamation of Odlober, 1763, from exercifing it from that time forward, and had thereby transferred the faid power to the future governours, councils, and af&mblies of the faid ifland; I fay, iince 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 Odlobcr, 1763 t 345 ] 1763. Unlefs, therefore, it was exprefsly declared by Lord Mansfield (who feems to have been the only judge that fpokc upon that occafion) that the other judges con- currc'd 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 (hould 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 refpedl to the fc- cond point, he exprefled himfclf in thefe pofitive words ; " But, after full confidcra- " tion, we are of opinion, that before the ** 20th 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 poliibility 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 file nee on the occafion feems to imply an Vol. II. Y y aficnt t 346 1 afTent 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 niay j 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 fp very able a de- fender of it as Lord Mansfield. For, if tha^ 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 fads; I muH: therefore adhere to my firft opinion till fon^e better arguments are produced to makp 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 [ 347 1 the fev^ral hidorical examples adduced by Lord Mansfield in fupport of his opinion, and likewife of fome digrellions to other fubjedts which you have made to gratify my curiofity* I muft defire you to refume the fubje(ft for a little while longer^ and repeat the principal conclufions we have agreed upon in anfwer to the feveral branches of Lord Mansfield's argument, and to (late them in as eompa^ and fummary a manner as you cant to the end that I may be the better able to arrange and retain them in my memory. ^1 I (4 ENGLISHMAN. 1 think this will indeed be very proper, for both bur fakes j and therefore I will en- deavour to do it with as much brevity as fiiall be cohfiflent with a full enumeration of the feveral conclufions, (relative to the maih fubjeft,) upon Which We h^ve agreed- but Vvithout any ttientibn df th^ collateral and incidetitail fubjedls to Whicil we have digf elTed. But even (his will take tip fnany words. tj^i W. A recapitula- tion of the principal coil' clufions efta- bliflied in the foregoing pa- ges in oppofi- tion to Lord Mansfield's argument ia fupport of the fole ligiflativc power of the Crown over conquered countries. 1 ■:' ■';:>,^ 4 : [ 348 1 ccnceriung field's rcafon and reafon. CciKiuf.trr, We have agreed, then, in the firft place, MMit- that Lord Mansfield has rcafoncd very in- • s from the conclufivcly in the firft part of his argument, jreiierai pvin- \^ which he cndcavours to eftabhlh the king's ciples of law , . -• . i . , fole legiilative 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 neceflarily at- tendant upon it, (which confeiFedly 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 13 ceded, with the power of making peace, or of either atcepting the ceflion of the conquered country from its former fovereign, or reftormg 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 ownerjjjip ', which, it it were to be admitted [ 349 1 admitted In other csifes to be fufficient for this purpofe, would prove every land-owner to be an abfolute monarch, or legiilator, over the perfons who rented, or took grants of, his land. Thefe, I think, are the re- marks we concurred in making upon the firfl part of Lord Mansfield's argument, in which he endeavoured to eftablifh this fole legidative power of the Crown upon prin- ciples of law and reafon. f • ,r > • « I come now to his precedents from hiftory, which are the cal'es of Ireland, Wales, Berwick upon Tweed, Galcony, Calais, New- York, Jamaica, Gibraltar, and Mi- norca. ' Concluiions concerning the precedents from hiftory, which were cited by Lord Mansfield. iHiii With refpedt to Ireland we obferved, that Of Ireland. he argued, from king John's having, by his foie authority, introduced the laws of Eng- land into Ireland, that he therefore was the fole legiflator ot it 5 which we agreed to be by no means a juft conclufion, there being a rnanifeft difference between a power in the conquenng king to introduce, once for all, immediately after the conquefti into the conauered i f 1 ■^''''d -m IMAGE EVALUATION TEST TARGET (MT-3) 1.0 U£|2£ 12.5 Hi IS u li£ 12.0 lid Ili4 1^ Photographic Sciences Corporation r<\- ,v <^ « 23 WIST MAIN STRICT WIV^TIR,N.Y. MS80 (716)873-4303 ;\ I [ 350 1 conquered country the laws of the conquer^ ing country, and the regular, permanent, legijlative authority by which the laws of the conquered country may, at any time after,; be changed at the pleafure of the legiflatorSj (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- ferved, that Lord Coke, in the pafTage quoted from this report of Calvin's cafe, has exprefsly declared that the kings of England were not poflefTed of this permanent legilli-t. five authority over Ireland, not having a dght to alter the laws of England, (when once introduced there by king John,) with- out confent of parliament i and that Lord Mansfield has adopted this opinion of Lord Coke, though it clafhes with the concluiion which he laboured Xb 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 pad, at lead, the laws which have been made for the government of Ireland have • "^ •* ■ , , ( i*' been t 3J' 1 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 ible legiflative authority in the Crown over a conquered country as Lord Mansfield afTerted to have belonged to it in the cafe of the ifland of Grenada before the publication of the royal proclamation of October, 1 763. Thefe, I think, are the principal remarks we agreed upon concerning Ireland, With refped to Wales, it appeared to us of Wales, that Lord Mansfield had miftaken two very material fadls relating to it. For, in the fiirft place, he afierted that that country had not been a fief of the crown of England before its compleat reduction by king Edward the ifl, notwichflanding king Edward, in the famous Statutum WalUa^ pafled immediately after the redudion of it, exprefsly declares that it had been fb, and notwithllanding a (:loud of palTages in that venerable old hifto- rian, Matchew Paris, (who lived in the reign of king Henry the 3d, king Edward's father,) which I? i^Dvi yM 1 m li-i :») If ♦ ■> .1 liii iH. |M- i.r. t 352 ] which prove that it was in fuch a date of feudal fubjedtion 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 vidorious arms, to be a dependant dominion of the crown of England 5 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 fubjedion to the Crown before his conqueft of it. And here we obferved that Lord Mansfield reafoned inconclufively even from his own aflfumed ftate of the faft. For, if Wales had not been a fief of the crown of England before king Edward's redudion 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 ftate oF feudal [ 353 1 feudal fubje^Ion to the Crown, fuch a plan of policy in king Edward would have ren- dered Wales an unfit example of the exercifc of the power of a king of England over a conquered country ; bccaufe it mud be fup- pofed that king Edward would, in fuch a a^fs^ 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 pofleflion. And we obferved alfo that he had mifconceived another material fadt relat- ing to this country, with rcfpedl to the power by which laws were made for the govern- ment of it after its redudlon by king Edward. For he alTerts 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 Sia- tutum Wallia^ above-mentioned, that the laws he then eftablifhed for the government of it were made de confilio procerum regni nofiriy or by the confent of his parlia- ment. i Vol. II. Z Thcfc '( y Of Berwick upon Tweed. r 354 ] Thcfe miftakes we obfcrvcd to have been made by Lord Mansfield in what he iaid 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 conditution of the Englifli government at this day. We then obferved that all the other in- ftanpes 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 ifland pf Jamaica. All that he fays of Berwick 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, nny more than he is of the cities of York, Brillol, 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 a6t of parliament in the reign of king James the firft. As t 35S ] As to the dutchy of Guienne, or Gafcony, Of thedutchy ^nd the town of Calais in France, they were and the town not acquired by the kings of England by p^jj^*'*"* *" conqueft:, but by marriage and inheritance, dnd confequently can afford no example of the power of the Grown over conquered countries, - •^-- ,- And the provinfce of New-York in America ^^ ^^^ P"*^- IS an unnt example for this purpofe, becaufe, 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 poffcflion of it, yet it was not fo con- lidered by king Charles the fecond, who took it 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 j it was pretended, the Dutch had intruded themfelves without the per-^ miflion 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 poflef- fion of it, had failed from England 3 and it was Z z 2 taken i. Of the ifland of Jamaica. ' [356] taken poflbfllon of by colonel NichoUs, as a part of the king 8 old dominions, before the king entered into the firft Dutch war. As, therefore, it was not confidered by the Crown as a conquered country, the government edabliihed in it cannot be juAly cited as an example of the authority of the Crown over conquered countries. — And nearly the lame thing may be faid of the ifland of Jamaica ; ftnce Lord Mansfield tells us that he had found, upon inquiring into the hiftory of it, that it had been almofl intirely abandoned bv 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 EngliiTi fettlers at, or foon after, the reftoration of king Charles the 2d in 1 660 ; infomuch that it had been confidered ever iince that period as an EngliHi 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 exercifc of the le* giflative authority of the Crown over con- quered countries. I mean only, however, that it is not a dire^ example for this pur« . . pole : t 357 ] pofe: for indfre^fy, I acknowledge, Both or both j<. this ifland and the province of New- York New*York. may be ufed as argunients in favour of this authority, by reafoning as follows. " The power of the Crown over a conquered country mud be at lead as great as it is over a planted country, or colony. Therefore, fmce the king of England exercifed legiflative authority over the ifland of Jamaica for about twenty years, without the concurrence of either the Englifli parliament or an aflembly of tht people ; and iince 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 Charleses letters-patent } and thefe two countries were not confldered as conquefts, but as plantations of Englifli-^ men -, it follows, a fortiori, that in couzi-* tries that are not only conquered, but co:7« iidered as conquered, the Crown may law- fully exercife the fame authority." This would have been a tolerably plauflble argu<^ ment, and much Wronger than any of thofe which Lord Mansfield made ufe of in that judgement. But he did not make ufe of this argumenti I' 1 ► |1 !■■■.* '41 i ,!■ i 358 1 drgtilnent ; and indeed could not, confif^cntly -with the opinion he delivered concerning planted countries^ or colonies : (ov 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 aflcmbly 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, therefore, make ufe of the foregoing argument a fortiori in favour of the king's folc legiflative authority over conquered countries,, which is built upon the fuppofition of his Majefty's having had fuch an authority over planted cowitriei^ or colonies ; bccaufe he denied the exiftence 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 legillator of planted countries, the in- ftances of New- York and Jamaica cannot afford the above indireift argument a Jor^ ifori in fupport of the king's fole legiflative authority over conquered countries. Nor cap they afford a direct argument, independ-« ently cntly of the confidcration of planted coun- tries, in fupport of this authority; becaulb tholb places, or provinces, (though really conqueftsi) 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 fuch lawyers (if there arc any fuch at this day) as would go further than Lord Mansfield in their notions of the king's legidative authority, and would fay, that the king is the folc legiflator not only of all con- quered countries, but of all planted countries in which he has not divefled 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 refped to planted countries, and that I am inclined to go beyond Lord Mansfield in thinking it like wife erroneous with refpedl 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-» bliQi it. r'- t K, . •-• 1 ■ J, m As •, ^ It •'■ .1 i 1 i fi [ 3«o 1 OfGibriltir. 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 feme 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 cadle, which defends the harbour of Mahon ; — that its civil government has been intirely negledted by the minifters of ftate in Great-Britain ever iince the conqueft of it, and that no attempt has been made to en- courage the profeflion of the Protcftant re- ligion in it, or to introduce the£ngli(h 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 Spanifh laws are fuppofed to be in force, and moil frequently appealed to,) the inhabitants fome- times plead the Englifti laws. And from thefe circumftances of negledt, confufion, and [ 36i J and uncertainty, and like wife from the fmali importance of the fubjcdls 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 impoilng taxes on the inhabitants of thofe countries, or for any other very important purpofe, having ever been made with refpedt to them,) we concluded that neither this iHand nor the town of Gibraltar were fit examples to prove Lord Mansfield's alTertion concern- ing the fole legiilative 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 lole Icgiflatlve authority of the Crown over conquered countries, which confided of hidorical ex- amples, which were fuppofed to be prece- dents of the exercife of fuch an authority. I come now to Lord Mansfield's lad head Conciufions of argument in fupport of this authority j the opinions which confided of the opinion of the judges, oilcrlln^ut as reported by Lord Coke, in Calvin's cafe, iawyf"» ^ ' whjch werj Vo^. II. A a a and cited bv Lord Mansfield. 1 '.H. ^ ^!'H.' I -Ir Of the opi- nion of the judj;es in Cal- vin's cafe. [ 362 i and of that of Sir Philip Yorke and Sir Cld*^ ment Wearg, (attorney and follicitor general to king George the ift,) in the year 1722, on a queftion referred to them concerning the ifland of Jamaica. '• ^ •• Concerning the opinion of the judges in Calvin's cafe we obferved in the ift place, that it was extrajudicial, having little, or no, relation to the queftion then under con fide- 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 fubjed in Eng- land as well as in Scotland, fo as to be intitled to purchafe land, and maintain aflions at law for the poffeflion of it, in the former kingdom as well as in the latter." And, upon this ground of its being extra judicial, we concluded that this opinion of th^ judges concerning conquered countries w^s not to be confidered as decifive upon the fubje6^. ' ' 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 [ 363 ] the difference between Pagan and Chriftian conquered countries, which was fo unreafon- ablc, illiberal, and unjuft, that Lord Manf- field faid it had long ago been mod defer v- cdly exploded. Now, if the opinion of thofe judges on the latter fubjedt is fo very con- temptible, it muft, furely, leffen our refpeft for the wifdom and judgement of the judges who delivered it, and confequently mud take off much of the weight which their other opinion, concerning Chriftian countries con- quered by the arms of England, would othei- wife derive from their authority. .= " .? ...0^ r' n it'< In the 3d place, we obferved that it ap-? pears from the hiftcry of thofe times, that the judges, who determined Calvin's cafe, were confidcred by many perfons of that age as having adled with a ferviJe degree of com- plaifance to king James on that occajiou; which may be fuppofed to have influenced them in the opinions they delivered upon incidental points that were mentioned in the courfe of their arguments, as well as in their opinion upon the main queftion then in difpute before them. And this confidera- 1 r . . - • f ill ? ill *' (it; 'I* ■f A aa 2 tion IHsiLiy ;':•! il m .1 f 3*4 I tion muft contribute to Icffen the authority of their opinions upon thofe incidental points as well as upon the main point, and confe- quently that of their opinion, fo much relied upon by Lord Mansfield, concerning the power of the Crown over conquered coun- tries. ■;"« t ' That opinion pf the judges is really con- trary to Lord Mansfield's opinion* And, m the 4th and laft place, we obferved that this opinion of Lord Coke and the other judges in Calvin's cafe, concerning the legiflative power of the Crown over conquered countries, is not the fame with Lord Manf- field's opinion upon this fubjeO, but materi- ally different from it. For Lord Coke afcribes to the Crown only the power of changing the laws of the conquered country once for all^ upon the conquefl of it, and introducing the laws of England in their flead : 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 pofTefTed of the perma- nent right of legiflation over it. So that • ' , this r 3^5 ] this authority of Calvin's cafe, (fuch asit is,) is rather adverfe than favourable to Lord Mansfield's dodlrine upon this fubje<Sl. Thefe are the obfcrvations we made with rcfped to this opinion of the judges in Cal- vin's cafe, upon which Lord Mansfield laid fo great a ftrefs. The only remaining authority cited by 9*^ *^® ®p!' Lord Mansfield was the opinion given by phiiip Vorice Sir Philip Yorke and Sir Clement Wcarg in |;,"em^ wwr" the year 1722 upon a queAion that was re- in 1722. 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 cafe 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 fbllicitor general to king George the ifl, (which muft naturally be . fuppofed to have given them fome degree oi - bvais ',(■ a. I. m 1 mi A mi 1 Mi it i ? i r End of the recapitulation begun in p. o4/* t 366 1 byafs in favour of the prerogative of the Crown, and this opinion appears to have been given by them in a very hafty 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^ quercd country, or had, by the condud of the Crown in the government of it lince the reftoration in 1660, been brought into the condition of a planted country, or colony ; which was fo neceflary to their giving an ufe-» ful and fatisfaftory 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 refpedt to the decifion of the important queflion which is the fubjedt 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. This, I prefume, is the kind of recapitukr tion which you wiflied me to make to you, of the principal conclufions we had agreed on in the courfe of our examination of Lord Mamfield*^ opiniDn upon this fubjed. FRENCH- [ 367 1 , 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, more eafily than I otherwife could do. Nor do I think of any thing further to trouble you about upon the fubjedl. And yet, before I intirely quit it, I muft beg leave to exprefs my furprize at the very pojitive and peremp^ iory manner in which Lord Mansfield aflerted this power of making laws for conquered countries to belong to the Crown. " No difpute, fays he, was ever ftartcd before upon the king's legillative right over a conqueft. It never was denied in Weft- minfter Hall ^ it never was queftioned in parliament." And again, " No book, no faying of a judge, no opinion of any counfel, publick, or private, has been " cited on the other fide; no inflance has " been found in any period of our hiflory, " where a doubt has been raifed concerning " it." Thefe are ftrangely confident expref- fions, considering the weaknefs of the proofs he adduces in fupport of them ; to which, . . .,,-... " indeed, A remark on Lord Manf- iicld^s peremp- tory manner of afl*erring the fole legiflative authority of the Crown o- ver conquered countries. (C (( « cc cc C( cc il Hi ^i"- m t 368 ] indeed, they form a remarkable contrad. This> I confefs, has furprized me in a man £o much celebrated forJiis learning and abi- lities as Lord Mansfield. I therefore wifh to know how you account for it -, and the rather, becaufe this extream poficivenefs in a man of his abilities has a tendency to dazzle and overbear my judgement, and make me yield implicitly to his opinion, notwithftanding I have fatisfied myfelf, by our difculTion of this fubjedt, that the reafons he has adduced in fupport of it, are very weak. ENGLISHMAN. Your remark is very juft. There is a flrange degree of pofitivenefs in his aflertions, 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- fclf 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 unnecefTary, and, confequently, injurious to the parties (by forcing them to fttffer a need- Icfs delay, and incur an unnecefTary degree of expence. t 369* ] cxpence, 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 pofitivcnefs of affertion is agreeable to his conftant manner of fpr-'king, and may, per- haps, be confidered as one of the ingredients of his fpecies of eloquence, as it certainly has the elFed you mention, of dazzling, for a time, and overbearing his hearers into an acquiefcence in the truth of the proportions he fo peremptorily alTcrts. But you, whof have examined the reafons adduced by him in fupportof his aflertion concerning the pre- fent fubjed, and have found them to be in- fufficient, ought to break through the in- chantment, and to yield to the concluficns of your own underftanding, and embrace what appears to it to be the truth ; agreeably to the old Latin proverb. Amicus Plato y Amicus Sccrates I fed magis arnica veriias. However^ to take off fomething of the im- preflion which you fay thofe pofitive aflertion s of I-»ord Mansfield, which youjuft now repeat- ed, are apt to make upon your mind, I will en- deavour to (hew you that moil of them might Vol, II. Bbb be Mil, t I ill' f J!?>i • . ! t. ; . ncy to • . of Lord Mai "field may b^; made with equal truth. Lord Mans- field's firft af- fertion, con- cerning the king's legifla- tivc power over a con- qaeil. A counter af- fertion, that is equidly true. C 370 3 be changed into others of an oppofitc ten- dency, which (hould be cither as nearly, or more nearly, agreeable to the truth : though yct» I confefs, they will not be decifive 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 afTertions and Lord Mans- field's, (to which they are oppofed,) are ne- gative propofitions, from which no certain conclufions can be drawn. xt :.' Lord Mansfield fays in the firfl 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 aflTerted in Wcftminfter-Hall, and made the ground of fome proceeding there; which it has not. We may therefore change this afl^ertion into the following j " The king's legiflative right " over a conqueft has never been offerted in " Weftminfter-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 M [ 371 1 power over a conqued has not been aiTcrted in Weftminfter-Hall, as I believe, above two. or three, times j and that by (ingle judges, and in a flight, occafional, and extrajudicial manner: but (if we underftand by it the full, and proper, and permanent Icgiflativc power, and not the power of introducing, once for all, the laws of England into the conquered country,) the king's legiflative 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 ** laws of England into Ireland, no fubfe- quent king could alter tliem without the confent of parliament." You fee, there- fore, that this firfl: affertion of Lord Mans- field, ** That the king's legiflative right over " a conqueft has never been denied in Weft- " minfter-Hall," is not true j and that, if it were true, it would not be material to the decifion of the main queftion, unlefs the faid legiflative right had been frequently af- ferted in Weftminfter-Hall, and made the ground of fome proceeding there ; which it has not. ^ '' • B b b 2 Lord (C cc iil|j ii:|ri>^ l.i' ! =' Is Lord Mans- field's fecond alTcrtion on the Tame fub- A counter af. fertioh that is e(|uall/ true. cc C( c< cc [ 37« 1 Lord Mansfield's next alTertion is, <* That the king's legiflative right over a conqued was never quedioned in parliament." Now we may aflert, I believe, with equal truth, That it never was acknowledged, or af- ferted, in parliament.'^ And the reafon of both thefe equally true, but very different, proportions, is, that the Parliament has never had occafion to confider the condudt of the Crown with refpedl 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 lince that period, to be the objcdls of this fuppofed legiflative au- thority, except the province of New- York, the ifland of Jamaica, the town of Gibraltar, and the illand 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 confldered as planted countries, or colonies, and the two laft have been conlidered by the Englifli natipn as mere garrifon towns^ or fortrefles, no ctherwife » . r worthy [ 373 ] worthy of notice than as they defend the har- bours of Gibraltar and Port Mahon, which are ufeful to the Britiih trade in the Mediter- ranean. However, I will not take upon me to (ay with any degree of confidence, either, ** thtt the king's legiflative right over a con- '* queft has never been denied in parliament," (as Lord Mansfield afieits) or ** that it has •* never been acknowledged, or aflertcd, in '* Parliament j" becaufe I do not pretend to be well enough acquainted with the many folio volumes of the Journals ot the two houfes of parliament, to venture upon either of thefe aflertions, or rather negations : but ) am inclined to think they arc both true : and in that cafe one of them may fairly be fet againft the other. . - * ^ <! i.l' P (< (< Lord Mansfield's next, or third, afifertion is, " That no book, no faying of a judge, no opinion of any counfel, publick or pri- vate, has been cited on the other fide." Now, in anfwer to this afiertion, it may be truly afiTerted that, " No book, no faying of *^ any judge, no opinion of any private coun- *^ fel, (that is, of any counfel that was un- " influenced Lord Mans- field's third afTertion on the fame Tub- jed. A counter af- fertion to it, that is more agreeable to truth. -^m i:^l li ;?n»l I tc Cf « «c <c « cc [ 374 1 '* influenced by the pofTeHlon of a precarious office held at the pleafure of the Crown,) and but one opinion of any publick coun- fel, (or counfel in polTeflion of fuch offi. ces,) namely, that of Sir Philip Yorlce 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 dodrine. And thus we (hall have afTertion againft aflertion concerning the want of opi- nions of judges and other learned men upon this fubjed, fuppofing the aflcrtion of Lord Mansfield to be true. But thefe afTertions prove nothing on either (ide. The want of the opinions of judges and other learned men concerning a queftion never agitated, affords us no grounds for the decifion of it : and thei e- (C « r 375 1 therefore we mud have recourfe to other me- thods of invefligation in urder to (atisfy our- felves concerning it. But Lord Mansfield's adertion, that *' No book, no faying of a judge, no opinion of any counfe], publick or private, has been '* cited on the other fide," is not (Iridly true. For the opinion of Vattel, a learned modern writer on the law of nations, was cited on that (ide : Und, 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. VatteVs work is writ in French: but I have an £ngli(h tranflation of it, in which the paflage relating to this fubjedt is expreiTed in thefe words. It is afked, to whom the conqued belongs ; to the prince, who made it, or to the Aate ? This queflion ought never to have been *' heard of. Can the fov.ereign a£t, 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- qued at his own expence, out of his own revenue, or his proper and patrimpnial " eftatcs. The opinion of Vatiel was cited at the tiialinoppo- fition to Lord Mansficld'b doflrine of the king's bet ing the folc legiflator of conquered countries. << <c c< c< (< cc (C fl '. 2 'in Hi % <c cc <c « cc f 376 1^ " eftates, does he not make ufe of his fub- " jedts arms ? Is it not their blood that is (hed ? — And, even fuppofing that he had employed foreign, or mercenary, troops, does he not expofe his nation to the ene-' my's refentnient ? Does he not draw it into the war, while the advantage is to be his " only ? — Is it not for the caufe of the flate, " and of the nation, that he takes arms? Therefore all the rights proceeding from it appertain to the nation. If, indeed, the fovereign makes war for a caufe perfonal ** to himfelf, as, for inftance, to afcertain a right of fucceffion to a foreign fovereignty, the queftion is altered ; fuch an affair would be foreign to the ftate ; but then the na- tion (hould be at liberty either to affift its prince or not concern itfelf. And, if he is impowered to make ufe of the national force in fupport of his perfonal rights, fuch rights are no longer to be diftinguilLed " 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 British nation, and not to the king alone j— that cc cc cc cc cc cc cc cc cc cc cc I Z7'7 ) that its publick revenue becomes part of thef publick revenue of Great-Britain, as much as the taxes raifed in Great-Britain itfelf, and is to be difpofedof in the fame manner, and for the fame publick ufes, as thofe taxes, in- ftead of belonging to the king's privy purfc ; — 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 poffefled of thofe powers in the kingdom of Great Britain itfelf; thtet 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 Vattcl's expreflion, the faid flate or nation. This paiTage from Vatters 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 no hook was cited on that fide of the queftion. If he meant that no book Vol. 1L G g c of [i m w l! i >h4 . [ 378 ] of Englifli law was cited on that fide, 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," (Iridly true with refpedt to the fecond article of it, the fayings of judges y any more than with refpeil 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 queftion: 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 $ which is faying, that the leeiflative authority over conquered countries does not belong to the king alone, but to the king and parliament conjointly. As to the opinions of lawyers on this fub- jedl, it may, perhaps, be true (as Lord Mans- field afi!erts,) that none were cited in the ar- guments in that caufc on that fide of the , quefiion. itit of ihe r^'le le^iHadrc nuthorlty of the Crown ever conqiered coun- Therearetwo opinions of attorni«..ge- neral that feen I unfa^ voL'rahic to L.KM Ma?!i?" (iLd'h dec- ' ili [ 379 I queftion. Yet I have met with two opinions of very refpedtable lawyers that incline much to that fide of the queftion, though they may not intirely adopt it. Thefe are the opinions Thcfe are tie of Sir William Jones, who was attorney-ge- wiiiiain jones neral to king Charles the fecond, and Mr. f^'^i^'^'^'' '■ Lechmere, who held the fame office under king George the i ft : 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 arifing from their pof- feffion of that office, having probably been in favour of the Crown, an opinion again ft the prerogative of the Crown muft have been the effedt of ftrong convidion. Sir William Jones was attorney-general to king Charles the fecond, in the year 1679, in the time of the ferment about the Popiffi 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 fbme popular laws for the prefervation of publick liberty. He exe- cuted, this office with great applaufe, and was reckoned to be the moft learned lawyer of or H.r Wil. lidm j ii'ics. •I* ifi 1 ;':' M '■■I 1; 1' '^ C c c 2 tnat The opinion of Sir William Jones. 380 1 that time -, Sir Matthew Hale, the great chief juftice of the King's Bench, being then dead : and he was alfo efteemed a very honefl: 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 2d, " Tbai he could no more grant a commiffion to ** levy money on his fubjeBs in the plantations^ " without their conjent by an ajfembly^ than " they cGuld dif charge themjelves from their a/" 5* tegiance" ^ifi 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 dirdndtion between planted countries, or colonies, and conquered countries, and whe- ther he meant to deny the right of the Crown to levy money b^^ iis own fingle authority in both thefe forts ot 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 1! I 38» 1 houfc of rcprefentatives 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 fecrctaries of ftate,) it is recited in thefc words ; " Sir William Jones, an eminent ju- Another ac- *• rift, declared it as his opinion, to king S°""' °/ .*e ^ " Charles the fecond, ^Tbat he could no more " grant a commiffion to levy money on his fub^ jeSls in Jamaica^ without their confent by an ajfembly^ than they could di [charge themjelves " Jrom their allegiance to the Crown". .^, c< (< i ) In this account we fee that this opinion re- lated to Jamaica ; 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 (ince its con- queft, (fuch as the withdrawing of the Spa- nifti inhabitants from it, and the acceffion of Engliftimen to it, who were invited by the king's proclamation to come and fettle in it,) fo \i :u>i.^y-' r 382 I fo as to have been thereby converted into the political condition of a colony, or country that had been originally planted by Englifh- men under the king's authority 5 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, in 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 given : 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 giveft, the inhabitants of Jamaica were governed only by a governour and coun- cil, without an affcmbly of the people : and confequently king Charles, when this opinion was given, had not yet, (by grarting them tlie privilege of being reprefented by an af- fe ally t 383 ] fcmbly with a power to make laws and im- pofe taxes for the publick ufes of the illand,) 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 ftill in its original ftate of a conquered country, notwithftand- ing moft of the Spaniih 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 exadlly in point to contradidl Lord Mansfield's dodrine of the king's fole legiflative authority over conquered countries. • And, agreeably to this conjedurc, 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 aflembly of the reprefcntatives of the province of MalTachufets B^\y, written in the fame V .< ■ A tliird ac- count of the lame opiniott. [ 384 ] fame month of January, 1768, as the former letter to Lord Shelburne, and addreffed to Dennis De Berdt, Efq; their agent in Eng- land, they fpeak of this opinion of Sir Wil- liam Jones in thefe words ; " There was, even in thofe times [the times before the Revolution] an excellent attorney-general. Sir William Jones, who was of another mind, and told king Charles the fecond, that he could no more grant a commijjion to levy money on his fubjeSis in Jamaica^ though a conquered ijland^ without their con- ** Jent by an ajfembly^ than they could di [charge ** themfehesjrom their allegiance to theEnglifi •* Crown** If this laft account of Sir William Jones's opinion is the true one, it is evident that he coniidered Jamaica as continuing flill in the condition of a conquered country, and confequently that his opinion with rcfpedt to the king's power over conquered countries is dircdlly contrary to Lord Mansfield's. cc cc cc cc cc cc cc Of the opi- nion of Mr, Lech mere. The Other opinion which I mentioned as material to our prefent enquiry was that of Mr. Lechmere, a lawyer of confiderable eminence, and efleemed a man of great in- tegrity, I 38s 1 tegrity, who was attorney-general to king George the i (I. This opinion I had occa(ion to mention to you in our lad converfation, juft before I begun the account of the impo- fition 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 (hortly thus. When ihe Britifli minifters of ftate, in the year 17 17* had a defign of ad- vifing the king to impofe, by his royal pre- rogative, the faid duty of four and a half pfer cent, on goods exported from the ifland of Jamaica and the little iflands of Anegada and Tortola, which are fituated at a fmall didance from St. Chriftopher's, they confulted Mr. Lechmere, the attorney-general, upon the legality of the intended mcafure. And he, thereupon, honeftly told them, " that the perfon who fiould advife his majefiy to take fuch a flepy would be guilty of high treafon^ But I do not know whether he confidered Jamaica as dill continuing in the date of a conquered idand, or not. If he did, this opinion of his would be an opinion exadtly in point to our prefent fubje<ft, and diredly contrary (as well as the opinion of Sir Wil-» Vol. II. Ddd liam cc <c (4 t 386 ] Ham Jones, according to the lad account of k,) to the dodtrine of Lord Mansfield con- cerning the fole legiilative authority of the Crown over conquered countries. End of the examination of Ld. Mans- field's per- emptory af- fcriions. Thefe two refpedlable opinions, againft 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. You now, I hope, are fatisficd that Lord Mansfield's peremptory aflcrtions, " that no doubts had ever been entertained by any lawyers, before the faio ^afe of Campbell and Hall, concerning the king's fole le- giflative authority over conquered coun- tries," are not quite agreeable to the truth, but that fbme lawyers of character in former times have prefumed to entertain a different opinion, and even to tell the king's miniflers that they did fo. And confequently you (hould fhake off from your mind that over- great awe and deference to that learned Lord's opinion which the peremptory manner of • ;: /a '". his cc <c <c (C (C Wl [ 387 J his making thofe affertions had imprcfTed upon it, and (hould boldly venture to entertain that opinion upon the fubjed which, upon the full inquiry you have made into it, appears to you to be the mod reafonablc. FRENCHMAN. 1 I will endeavour to do fo, as far as I am able. But, I proteft, I find it difficult; as his authoritative manner of making thefe af- fertions does flill retain fome influence over my mind, notwithftanding you have now con- vinced me that they are neither altogether true, nor decilive of the matter in queftion, if they ivere true. However, upon the whole, 1 do venture to conclude that the rcafons he has given in fupport of his opinion, ** that the king alone has a legiflative authority over conquered countries," are far from beinn: fufficient to maintain it. I fliould there- fore continue to hold the opinion which at firft appeared to me moft reafonable, to wir, that the king and parliament (conjointly, and not the king alone, had a right to make laws for the inhabitants of conquer- ed countries; and to impofe taxes on them, P d d 2 <c C( cc C( <c <( M lb* i!i \'n An enquiry how far Lord lMansfield*9 declaration of hisopinion,in favour of the fole legifla- tive power of the Crown o- ver conquer- ed countries, in the judge- ment he deli- vered in the cafeofCamp- bell and Hall, is decifive of the law upon that fubje£t. t 388 I if it were not for one remaining difficulty, concerning which I mud defire the aflidance of your opinion. This difficulty is grounded on the authority which Lord Mansfield's doc-r trine may, perhaps, derive from the very circumftance of its being his opinion, and having been delivered by him, as fuch, in his judicial capacity on a queflion that brought the fubjedt regularly before him for his dcci- iionj more efpeclally, if we confider the filence of the other judges of the court of King's Bench, when Lord Mansfield deli- vered this opinion, as implying their concur- rence with him in it. For in this cafe it may be faid, that, on the only occafion on which this dodrine **" of the king's fole legiflative ** power over conquered countries" has been brought into queftion before an Englilh 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 ail future courts of jullice in thcjr decifion of the fame queftion, t 389 ] que{lIon« as often as it (hall occur before them. 1 fhould be glad to know, therefore, what you think of this conclufion, and whe- ther, b) the rules obfervcd by Englifh courts of jullice with refpedl 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 mud needs think that Lord Mans- field and his brother judges will, by that opi- nion of theirs in their judgement on the caic of Campbell and Hall, have, indiredlly, made a law of the moft capital importance to Great- l]ritain and the Britilh dominions. ENGLISHMAN. Your queftion is a very proper one, and not a very ealy one to anfwer 5 there being no exprefs law, nor even conftant ufagc, that afcertains, in all cafes, the degree of deference which is to be paid by courts of juftice to the former judicial decilions of the fame or other courts of jullice. And we have feen Lord Mansfield himfelf, fince he has been chief judice The courts of jullice lomc- timcs deter- mine points of law in a manner that is contrary to their own for- mer decidoas of them. .il i 4 '% A remarkable inftanceofthis kind. [ 390 ] 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 diredtly contrary to the determination of it by all thejudgesof thcfame 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- ferent manner. I particularly remember an indance of this kind in a cafe in which the names of the parties were Wyndham and Chetwyndt containing the qualifications necef- fary to the three witnefles who, by a certain flatute made to prevent frauds, are required to attefl 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. Generalrules jjj ^^ f^^ft place, where a point of law concerning * ^ *■ the authority has been agitated in all the courts through of iadiciald^- t • « • 1 • 1 1 1 terminations which It may DC carricd by appeal, or wrrt ot points of of [ 391 ] of error, and has been finally determined by a judgement of the highefl court of appeal, that is, of the houfe of Lords^ (for that is, in Great-Britain, the highed 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 a(^ of parliament j or, at leafl, it is fo con(idered by all the ordinary courts of juflice, 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. i ; !■ if 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- eery, the court of King's Bench, the court of Common Pleas, and the court of Exchequer; and the party, again (I whom the judgement has been given, has acquieiced in it, and has forborn to bring an appeal, or a writ of error, into the next higher court of judice, to which the right of reviling the judgements of the firfl courtj and correding the errors in them, belongs > '[ li l|i t 392 ] f belongs; and fuch forbeararxe does not arife from the poverty or inability of the faid party to bear the expence of profccuting fuch writ of error, or appeal to the next higher court ; fuch a determination acquires a great degree of refpedl 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 fbmetimes 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 Cbetwynd, which I juft now mentioned to you. Yet fuch ovcrturnings of the former folemn determinations of courts of juftice are very unfrequent, 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 maybe juftifiable. : In I 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 faid judgement more than one point of law has been determined in favour of fuch party; and the lofing 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 pointis of law acquire a confiderable degree of weight and authority in the eftimation of lawyers and fubfequent courts of juftice, but yet arc not quite fo much refpeded 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 againfl the other, it is uncertain, whether the loling party* vfhcn he acquiefces under the whole 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 againfl him, or only in fome, or one, of them i becaufe, if only one of them is rlght- VoL. II. Eee ly I l\ III 111 liy r; ii r 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 arid authority which fuch determina- tions would other wife derive from his acqui- efcence. / And fourthly, if a matter has been fully argued before a court of juftice in Weftmin- fler-Hall, and a folemn judgement has been given upon it in favour of one of the parties j 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 acquiefces in the faid judge- ment, and brings no writ of error to reverfe it ; fuch an acquiefcence of the loiing party can operate as a confirmation of only thofe points of law which are determined againft '• - him. [ 395 1 him, and not of thofe 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 h&ve dif- ferent degrees of weight and authority, name-r ly, the points determined in favour of thg lofing party, and the points determined againft him. For the points determined in favour of the lofing party will have that degree of weight and authority which arifes from the refpedfe 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 difcufled before they were decided ; but thofe which are determined againft the lofing party will, belides the weight and authority arifmg from the foregoing cir- cumftances, be intitled to an additional de- gree of refped arifing from the acquiefcence of the lofing party, whigh will ihew that he and his counfel, learned in the law, defpair of having thofe points determined in a diffe- rent manner, if they were to bring a mil of ^rror for the purpofe. ii! it i 1| £ e e 2 Thefi; f I The opinion of Ld. Manf' iield, concern- ing the fole legiflative au> thority of the Crown over conquered countries, de- livered in the cafeofCamp. be]] and Hall, is a judicial determination of the fourth, or loweft, ciafs of thofe above de- icribed. f 396 ] Thefc fecm to me to be the different de- grees of authority which are attributed by the £ngli(h courts of judice 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- . r FRE N C H M AN. ; ' I enter very readily into thefe diflin(£lions between the different forts of judicial deter- minations, and think them very natural and reafonable. And, according to this gradation of them, it fcems to me that the opinion of Lord Mansfield, delivered in the cafe of Campbell and Hall, concerning the foic 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,) mufl be placed in the fourth, or lowefl, 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 lofing party, all that can be inferred from his acquiefcence in the cc cc <( t 397 ] the judgement given againft him in that ac- tion is that he and his^ counfel acquiefced in the opinion of the cdurt upQp the fecond point, *' of the immediate operation of the king*8 proclamation of Odcber 1763, as a bar to the exercife of his antecedent legif- lative authority/' and defpaired pf having it otherwife determined, if he fhould have brought it into the hotife of lords by writ of error. And as to the plaintiff Campbell, who gained his caufe, he could not bring a writ of error to reverfe a judgement that wa& given in his favour. So that the opinion of Lord Mansfield upon that firft point mudy indeed, be confidered as the opinion of that learned Lord, and, perhaps, of the whole court of King's Bench, upon a point that had been fully argued before them, and muft be iutitled to all the refpsd which is due to it on that account, but cannot derive any ad- ditional weight from the acquiefccncc. of ei- ther of the parties under it 5 that is, it muft be a judicial decifion of the loweft of the four claffes of judicial decilions which you have been jufl now defcribing. « ' CNG- I [ 398 J '■. 'I ■ *"* *■= ■■ -t . - , ,,. _ . v ■ ^ ■ . - . ■ ; ■.. , ENGLISHMAN. It is exadUy To. The opinion of Lord Mansfield upon that firft point is a decifion of that fourth and lowed clafs. And there- fore I fuppofe that it would not he confidered by the fame or any other court of juftice in Vy'eftminfter-Hall, on any other occafion in which the lame point, " of the king's legifla- tive authority over conquered countries," (hould occur, as being abfolutely binding and deci- iive of the queflion, fo as to be intitled to the confirmation of fuch court of judice, though the reafons on which it was founded ihould be intirely difapproved by the judges of which fuch court (hould be compofed ; iince we have feen, in the cafe of Wyndham and Chetwyndy (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 ^onfiderable weight with the judges of fuch fublequent court of juftice, fo as to induce them to give judgement agreeably to it, if they were only in a flate of doubt concerning the validity of the reafons on which it had been grounded, . and [ 399 1 and did not thoroughly difapprove them. So that I am afraid we muft allow, that (weak and ill-ground :J 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 obfer/ed, it is a decifion of the fourth, or lowed, clafs of the feveral forts of judicial determinations above defcribed. — But 1 hope your curiodty is now fatisiied with refpe€t to this important queflion of law, concerning the fuppofed fole legiflative authority of the Crown over conquered countries, which, I think, we have very fufEciently difcufTed. I only tyof jded, ancl r; FRENCHMAN. My curiofity is, indeed, fatisfied on this fubjedt : but the pieafure I have had in the inquiry is allayed with iome mixture of un- eafinefs 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 Englifh conflitutlon (as I moil . . , , fincer^ly f 4<>o J iJnccrcly profcfs myfelf to be) not be ferry to find, that the only judicial dccifion that has been made upon the fubjedl, has afcribed 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 BritiHi arms?*— -I therefore hope, either, that the law upon this fubjedl will foon be altered by an exprefs adt of parliament for the purpofc, or that the quedion may again be brought under the conlideration of fome court of juftice, and be there determined in a different manner, as the cafe jud now mentioned, of Wyndham and Cbetwynd, was determined, by Lord Mansfield himfelf and the other judges of the King's Bench, in a manner diredtly 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 pertliaAently in the pofTefiion of the Crown. ;,,'>' I' ''■ ENG. ENGLISHMAN. . . I heartily join with you in thefe wiilies : but doubt a little whether they are likely to be foon accomplifhed. However, if this queflion were again to come before a court of juftice, and the merits of the caufe were to turn (ingly upon the decifion of it, (which was not the cafe in the adtion of Campbell againft Hall,) I can hardly perfuadc 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 fhould influence their own judgements in favour of its 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 6i Anjly andDoivfingy) which was overturned by the fame court in the fubfequent cafe of Wyndham and Cheti^ynd^ that cafe having been a decifion of the fe- End of the cond; clafs, and this being only of the fourth, of the opinioa '^ Vol 'II ' •' '' Fff ' But ^^^i^'^'^'^ ^/ V OL. lu r r r n\x\ j ^ lyjansfieid in the judgement in the cafe of Campbell and llall, concerning the fole legif. huive ^owcr of the crown over contjuercd countries. • J ii'. 4i(!.. i hAH [ 402 ] But this is all matter of conjedture, and confequently not worthy our further confide- ration. .». I Twomeafures inore,(berides thofedifcufled inthefirftDia. logue,) feem acceflarytobe adopted, in order to a thorough re- conciliation between Great-Britain and her colo- nies. Wc will now, therefore, if you pleafe, take our leave of this fubje(5t, and, with it, put an end to the prefent converfation : for I have not either time, or inclination, jufl at prefent, to enter upon a new fubjedt. But in a day, or two, if you deflrc 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- sion, 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 criiis of affairs, in order to a permanent accommodation of the un- happy diiferences in which (he is now in- volved with fo many of her colonies on this, continent. , A y FRENCHMAN. f" ! • I -'ll , '' . tinn.. I v}t\\ remember them, and (hall be glad to hear you fpeak of them when we are . more ihk { 403 1 more at leifure. The firfl of them was, to The firft of remove from the minds of the Americans }u°,* "***" the apprehenfions of having bifhops e(labli(hed amongft them without the confent of their aflemblies. And the other was, to amend The fecond. the conftitutions of the provincial councils in the feveral royal governments of America (which are governed only by the king's com- miflions, without a charter) by increafing, to, at lead, 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 remaining mea- fures which you confidered 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, he- 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 ore ■ j,...i ait?' • t 404 J cans upon th^fefubjedls, th^t ipake you con-; fider them as of To much importance. And. thefe, if you have fuch^ I fhall be glad to hear at large at our next meetings [t ^ f ,»fr»fi r ENGLISHMAN. ./I) ■.'.''.• ' = . ■' ^ - 5dj Thefe were,- as you fay, the topicks that remained to be difculTed by us: and I moil certainly have fuch particular reafbns as you fuppofe for wifhing that thefe two meafure^ were adopted. And, when we meet again,-. aM ^eafom ^ wiU explain thefe rcafons to you in the of thefe two fuileft and beft, manner I am able; and>, meafures will • ^ -' ,/. >- « , ■- /- ' • ' be explained perhaps, may alio fuggeft another meafure, Diabgu^** or two, (befides thofe you have juft now menrv tioned,) that would alfo be ufeful towards: this important end of reiloring peace and CQ|^^ fidence between Great -Britain and her.{ American, colonies* In the -meanr tlow farewell, r p,^.,, -. r* r *i\ ' *? ct^i^CEffJ ^'tife Secoud Dialogue, rjbfi (11. . V. i i - b