7] 
 
 '/ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 ^us m 
 
 I.I 
 
 S lii 120 
 
 1^ II 1.4 |L6 
 
 Hiotographic 
 
 Sciences 
 
 Corporalion 
 
 
 
 
 V 
 
 M 
 
 ^^ 
 
 m 
 
 \ 
 
 
 
 23 WIST MAIN STMLT 
 
 WISSTIR.N.Y. 145M 
 
 (716)tn4S03 
 
 
 6^ 
 
 ,- 
 
 ' 
 
 J 
 
CIHM/ICMH 
 
 Microfiche 
 
 Series. 
 
 CIHM/ICMH 
 Collection de 
 microfiches. 
 
 Canadian Institute for Historical Microreproductlons / Institut Canadian de microreproductions historiques 
 
Technical and BibHograpMc NotM/Notas tachniquas ai MMiographiqiiaa 
 
 Tha Instituta haa attamptad to obtain tha bast 
 original copy avallabia for filming. Faaturas of this 
 copy which may ba bibliographicaNy uniqua. 
 which may altar any of tha imagas in tha 
 raproduction. or which may significantly changa 
 tha usual mathod of filming, ara chackad balow. 
 
 D 
 
 D 
 
 D 
 
 D 
 D 
 
 D 
 
 
 
 Colourad covers/ 
 Couvartura da coulaur 
 
 I I Covars damaged/ 
 
 Couverture endommagte 
 
 Covers restored and/or laminated/ 
 Couverture restaurAe et/ou pellicuMe 
 
 □ Cover title missing/ 
 Le 
 
 titre de couverture manque 
 
 □ Coloured maps/ 
 Cartas gtegraphiques en couleur 
 
 Coloured ink (i.e. other than blue or black)/ 
 Encra da couleur (i.e. autre que Meue ou noire) 
 
 I I Coloured plates and/or illustrations/ 
 
 Planches et/ou illustrations en couleur 
 
 Bound with other material/ 
 Rail* avac d'autres documents 
 
 Tight binding may cause shadows or distortion 
 along interior margin/ 
 
 La re liure serrte peut causer de I'ombre ou de la 
 distortion la long da la marge intArieure 
 
 Blank leaves added during restoration may 
 appear within tha text. Whenever possible, these 
 have been omitted from filming/ 
 II se peut que certaines pages bisnches ajouttes 
 lors d'une restauration apparaissent dans la texte. 
 mais. lorsque cela Atait possible, ces pages n'ont 
 pas At* f ilmAes. 
 
 Additional comments:/ 
 Commentaires supplAmentaires: 
 
 The( 
 toth 
 
 L'Institut a microfilm^ le meiHeur exemplaire 
 qu1l lui a AtA possible de se procurer. Les dMaHs 
 de cat exemplaire qui sent peut-Atre uniques du 
 point de vue bibliographique. qui peuvent modifier 
 une image reproduite. ou qui peuvent exiger une 
 modification dans la mAthode normale de filmage 
 sont indiquto d-dessous. 
 
 n 
 
 D 
 
 Coloured pages/ 
 Pages de couleur 
 
 I — I Pages damaged/ 
 
 Pages endommaigAes 
 
 Pages restored and/oi 
 
 Pages restauries et/ou peiHcuMes 
 
 Pages discoloured, stained or foxei 
 Pages dAcolor6es. tachetAes ou piquAas 
 
 Pages detached/ 
 Pages dAtachAes 
 
 Showthrougtw 
 Transparence 
 
 Quality of prin 
 
 Quality inAgale de Umpression 
 
 Includes supplementary materii 
 Comprend du mat6riel suppMmentaire 
 
 Only edition available/ 
 Seule Mition disponible 
 
 I — I Pages restored and/or laminated/ 
 
 FTl Pages discoloured, stained or foxed/ 
 
 r~~| Pages detached/ 
 
 r~7| Showthrough/ 
 
 n~1 Quality of print varies/ 
 
 |~~| Includes supplementary material/ 
 
 I — I Only edition available/ 
 
 The I 
 poss 
 of th 
 filmii 
 
 Origi 
 
 begii 
 
 theii 
 
 sion, 
 
 othei 
 
 first 
 
 sion, 
 
 or ill) 
 
 The I 
 shall 
 TINU 
 whic 
 
 Mapi 
 diffei 
 entin 
 begir 
 right 
 requi 
 meth 
 
 Pages wholly or partially obscured by errata 
 slips, tissues, etc.. have been refilmed to 
 ensure the best possible image/ 
 Les pages totalement ou partiellement 
 obscurcies par un feuillet d'errata. une pelure. 
 etc.. ont At A filmAes A nouveau de fa^on A 
 obtenir la meilleure image possible. 
 
 Various pagings. 
 
 This item is filmed at the reduction ratio checked below/ 
 
 Ce documem est filmA au taux de rAduction indiquA ci-deasous. 
 
 10X 
 
 
 
 
 MX 
 
 
 
 
 18X 
 
 
 
 
 22X 
 
 
 
 
 2BX 
 
 
 
 
 30X 
 
 
 
 c 
 
 
 
 
 
 
 
 
 
 y 
 
 
 
 
 
 
 
 
 
 
 
 
 
 H 
 
 12X 
 
 16X 
 
 aDx 
 
 MX 
 
 2BX 
 
 32X 
 
re 
 
 lAtaUs 
 M du 
 modifier 
 Br una 
 filmage 
 
 The copy filmed here has been reproduced thanks 
 to the generosity of: 
 
 Library of the Pubiic 
 Archives of Canada 
 
 The images appearing here are the best quaiity 
 possible considering the condition and legibility 
 of the original copy and in keeping with the 
 filming contract specifications. 
 
 L'exemplaire f ilmA f ut reproduit grice A la 
 ginirositA de: 
 
 La bibliothdque des Archives 
 pubiiques du Canada 
 
 Las images suivantes ont itA reproduites avec ie 
 plus grand soin, compte tenu de ia condition at 
 de la nettetA de I'exempiaire film*, et en 
 conformity avec les conditions du contrat de 
 filmage. 
 
 ies 
 
 re 
 
 Original copies in printed paper covers are filmed 
 beginning with the front cover and ending on 
 the last page with a printed or illustrated impres- 
 sion, or the back cover when appropriate. All 
 other original copies are filmed beginning on the 
 first page with a printed or illustrated impres- 
 sion, and ending on the last page with a printed 
 or illustrated impression. 
 
 The last recorded frame on each microfiche 
 shall contain the symbol -^ (meaning "CON- 
 TINUED"), or the symbol y (meaning "END"), 
 whichever applies. 
 
 Maps, plates, charts, etc., may be filmed at 
 different reduction ratios. Those too large to be 
 entirely included in one exposure are filmed 
 beginning in the upper left hand corner, left to 
 right and top to bottom, as many frames as 
 required. The following diagrams illustrate the 
 method: 
 
 Les exemplaires originaux dont ia couverture en 
 papier est imprimAe sent filmte en commenpant 
 par Ie premier plat et en terminant soit par la 
 dernlAre page qui comporte une 'smpreinte 
 d'impression ou d'illustration, soit par Ie second 
 plat, salon ie cas. Tous les autres exemplaires 
 originaux sont fiimfo en commen^ant par la 
 premiere page qui comporte une empreinte 
 d'impression ou d'illustration et en terminant par 
 la dernlAre page qui comporte une telle 
 empreinte. 
 
 Un des symboles suivants apparattra sur la 
 dernlAre image de cheque microfiche, selon Ie 
 cas: Ie symbols — ► signifie "A SUIVRE", Ie 
 symbols y signifie "FIN". 
 
 Les cartes, planches, tableaux, etc., peuvent 6tre 
 film6s A des taux de rMuction diffirents. 
 Lorsque Ie document est trop grand pour Atre 
 reproduit en un seul clich6, il est film* i partir 
 de I'angie sup6rieur gauche, de gauche A droite, 
 et de haut en bas, en prenant Ie nombre 
 d'images nicessaire. Les diagrammes suivants 
 illustrent la m6thode. 
 
 f errata 
 id to 
 
 nt 
 
 ie pelure. 
 
 pon A 
 
 ^,1 
 
 a 
 
 3 
 
 32X 
 
 '• i 
 
 ' i 
 
 n ^t 
 
 A 
 
 B 
 
 9 
 
I 
 

 THE 
 
 Canadian Freeholder 
 
 DIALOGUE U 
 
 # 
 
'-" '«IWift«eV#0' ■'•»■■•»» 
 
 ■^^mt*" ^ * 
 
 A.i»*|;'^.t j. , v. 
 
 a 
 
 ro4 
 
 A7 
 
 rv\3g 
 
 — ,. »-, 
 
 r. 
 
 .a- 
 
 i'.'w.- 
 
 * fe 4 .* "* K » 
 
 » .«■■• ^(w' -fk ««• "*•» " ■ 
 
 
 i J I 
 
 iii 
 
 f^ 
 
 :.) 
 
 ) (1 
 
 -» J" 
 
 
 
 ".i*»«(r"i^''»>"'v 
 
 • 11^ ■«■■-%«». 1 
 
 # 
 
 TiW^- 
 
|i mmf-g- r^^' ■■" ^' •■m<m^^ ••t'wv 
 
 THE 
 
 Canadian Freeholder : 
 
 I N 
 
 THREE DIALOGUES 
 
 BETWEEN AN 
 
 ENGLISHMAN and a FRENCHMAN, 
 > Settled in Canada. 
 
 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