SESSIONAL PAPER No. 18 Necessity of making the members of governour, council and assembly, had been pursued. And therefore we cannot but express our concern to find, that in the bill now before parliament, there is no provision that all, or even any of, the members of the said intended council should of necessity be protestants, but that they may be all Roman-Catholicks notwithstanding any thing contained in the same. And therefore we most humbly and earnestly intreat this honourable house to take care that, if such a legislative council must be established in the said province, in lieu of an assembly of the freeholders of the same, the members thereof shall be all protestants; or, if that be thought too much to grant to them, that at least a majority of the members of the said council should necessarily be protestants, and only a few of the most moderate sort. of Roman-Catholicks should be admitted into it, who should be required to take the oath of abjuration of the pope's authority, though not to subscribe the declaration against transubstantiation; which is a temperament, which, as we conceive, might lead to good effects hereafter. And we further beg leave to represent both on our own account, and in behalf of our friends and correspondents, the antient British inhabitants the legislative now residing in the said province, that, if the said province must be gocouncil inde- verned by a legislative council, nominated by his majesty, without the conpendent of the currence of an assembly of the freeholders of the same, we humbly hope governour. that a clause will be inserted in the bill, to render the members of the said council incapable of being either removed or suspended by his majes ty's governour of the said province, and liable only to be removed by his majesty himself, by his order in his privy council, (of whose wisdom and justice we can entertain no suspicion) to the end, that the said counsellors may both act with a spirit of freedom and independence becoming their high offices of legislators of the said province, and be thought to do so by the people of the same, instead of being considered as dependent creatures and tools of the will and pleasure of the governour for the time being, as we conceive will be the case, if he shall be invested with a power of removing or suspending them from their said offices at his discretion. The petition a certain numler of mem And we beg leave further to represent, that it is also our wish, if such ers désire a legislative council shall be established in lieu of an assembly, that the that the legislative council number of the members thereof may be fixed and certain, instead of being may consist of liable to vary between the numbers of seventeen and twenty-three persons, as is proposed in the present bill; and likewise, that the said council may bers, instead be made as numerous as conveniently may be, to the end, that it may conof a number tain within it persons acquainted with every part of the province, and the interests of the inhabitants residing in the same, and that their acts and resolutions may be, for the most part, agreeable to the sentiments of the body of the people over whom they are to preside. And, with respect to And they sug- this point, we beg leave to represent, that it is the opinion of some of the gest that their most judicious and respectable of our friends and correspondents in the said province, that it would be easy to find thirty-one persons amongst the British and other protestant inhabitants of the said province, capable of being useful members of such a council. that may be varied at pleasure. number should be thirty-one They further desire that a majority of the whole number of counsellors And we further beg leave to represent, that in case such a legislative council should be established, it is our earnest desire that provision may be made in the said bill, that a certain number of the members of the same shall be necessary to transact business; without which it may happen, that a very small part of the whole body, as, for example, five or six persons, shall occasionally exercise the great powers vested in the whole, and the transact make laws and ordinances that shall bind all the inhabitants of the proing of business. vince; which, we humbly conceive, would be highly inexpedient and unbecoming, and cause great uneasiness in the said province. And we are may be made necessary to 1 The Quebec Bill. And that the ance at the 6-7 EDWARD VII., A. 1907 humbly of opinion, that the number thus made necessary to the exercise of these high legislative powers, ought to be more than half the whole number of the members of such council. And we further beg leave to suggest it as our opinion concerning this members may legislative council, that it would be expedient that the members thereof be paid for should receive some reasonable reward out of the publick revenue of the their attend- province, for every attendance at the meetings of the said council on the council, a cer. legislative business of the said province, sufficient, at least, to defray the expences of travelling to the place where the said meetings shall be held, and of residing there during the time of the said meetings; to the end, that at all the meetings of the said council, there may be a very full attendance of counsellors, who may concur in exercising the said high authority; without which, the ordinances they shall pass will not be very likely to obtain the reverence due to them from the people, nor meet with a chearful obedience. tain sum of money for every attendance. And that the to the end that But above all, we beg leave to repeat our most earnest hopes and desires, said council that the establishment of the said legislative council (if it shall be may be established for only resolved that such a one shall be established,) may be only for a small a small num- number of years, to the end, that, in case it shall hereafter appear to his ber of years, majesty, that the situation and circumstances of the said province will the province admit of the summoning a general assembly of the freeholders of the same, we may at last reap the benefit of his most gracious promise to us in his proclamation and commissions above-mentioned, that we should be governed in the usual and approved method of his majesty's other colonies in America, by a governour, council, and assembly. may after wards be gov erned by an assembly. We therefore humbly hope, that the honourable house of commons will take our case into consideration, and permit us to be heard by our council at the bar of their house, to the several heads mentioned in this state of it, and to such other parts of the bill now before them, as we shall apprehend ourselves to be concerned in interest to object to, either on our own account, or in the behalf of our correspondents and friends, the Old British subjects of the crown now residing in the said province. And we have a firm reli ance on the wisdom and justice of this honourable house, the representatives of the Commons of Great-Britain, for a satisfactory determination upon all the matters contained in this case, and upon the other points which may be submitted to their consideration by our counsel at their bar, and for the protection of our rights and liberties, as British subjects, who have acted under the sanction of his majesty's royal proclamation above-mentioned. LORD MANSFIELD'S JUDGMENT IN CAMPBELL v. HALL, 1774. The case of the Island of Grenada; in relation to the payment of four and one-half in the hundred of goods imported therefrom; between Alexander Campbell, Esq., Plaintiff, and Wm. Hall, Esq., Defendant, in the Court of King's-Bench, before Lord ChiefJustice Mansfield: 15 George III., A.D. 1774. November 28. The unanimous judgment of the Court was this day given by Lord Mansfield, as follows: This is an action brought by the plaintiff, Alexander Campbell, who is a naturalborn subject of Great Britain, and who, upon the third of May, 1763, purchased lands 1 After comparing the versions of this Judgment as given m Cowper's "Reports," Lofft's "Reports," and Howell's "Complete Collection of State Trials" Vol. XX, it has been found that, with some slight variations, the selected version given by Mr. Wm. Houston in his "Documents illustrative of the Canadian Constitution" p.79, may be safely followed, and is therefore substantially that given here. SESSIONAL PAPER No. 18 in the island of Grenada; and it is brought against the defendant, William Hall, who was collector for His Majesty at the time of levying the imposts, and of the action brought, of a duty of four and a half per cent. upon goods exported from the island of Grenada. The action is to recover a sum of money, which was levied by the defendant and paid by the plaintiff, as for this duty of four and a half per cent. upon sugars, which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff. The action is an action for money had and received; and it is brought upon this ground, namely, that the money was paid to the defendant without consideration, the duty for which he received it not having been imposed by lawful or sufficient authority to warrant the same. And it is stated in the special verdict' that the money is not paid over, but continues in the defendant's hands, by consent of the Attorney-General, for His Majesty, in order, that the question may be tried. The special verdict states Grenada to have been conquered by the British arms from the French King in 1762; that the island was ceded by capitulation; and that the capitulation upon which it surrendered was by reference to the capitulation upon which the island of Martinico had been surrendered on the 7th of February, 1762. The special verdict then states some articles of that capitulation, particularly the fifth, which grants that Grenada should continue to be governed by its own laws till His Majesty's pleasure be known. It next states the sixth article, where, to a demand of the inhabitants of Grenada requiring that they, as also the religious orders of both sexes, should be maintained in the property of their effects, moveable and immoveable, of what nature soever, and that they should be preserved in their privileges, rights, honours, and exemptions, the answer is that the inhabitants, being subjects of Great Britain, will enjoy their properties and the same privileges as in the other His Majesty's Leeward Islands. Then it states another article of the capitulation, namely, the 7th article, by which they demand that they shall pay no other duties than what they before paid to the French King; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the administration of government should be paid out of the King's demesne in answer to which they are referred to the answer I have stated, as given in the foregoing article; that is, being subjects they will be entitled in like manner as the other His Majesty's subjects in the British Leeward Islands. The next thing stated in the special verdict in the treaty of peace signed on the 10th of February, 1763; and it states the part of the treaty of peace by which the island of Grenada is ceded, and other articles which are not material." The next material instrument which they state is a proclamation under the Great Seal, bearing date the 7th of October, 1763, reciting thus: "Whereas it will greatly contribute to the settling of our said islands of which "Grenada is one, that they be informed of our love and paternal care for the liberties "and rights of those who are, or shall be inhabitants thereof; we have thought fit to "publish and declare by this our proclamation, that we have by our letters patent under "our Great Seal of Great Britain, whereby our said Governments are constituted, given "express power and direction to our governors of our said colonies respectively, that so "soon as the state and circumstances of the said colonies will admit thereof, they shall, "with the advice and consent of our said council, call and summon general assemblies, "in such manner and form as is used in the other colonies under our immediate govern"ment. And we have also given power to the said governors, with the advice and consent "of our said council and assembly of representatives as aforesaid, to make, constitute, The general argument presented in this judgment on the status of the laws of a conquered country, and on the nature of the authority having the right to change them, may be compared with the arguments presented, in the case of the Province of Quebec, by the various law Officers of the Crown, alike in Britain and in Canada. In Vol. II, of the "Canadian Freeholder" Maseres discusses the whole judgment with his usual learning. 1 Referring to the verdict of the jury before whom the case had been tried and who rendered a special verdict setting forth the facts in the case. 2 See Treaty of Paris, 1763, article 9; p.76, and also p.87. 6-7 EDWARD VII., A. 1907 "and ordain laws, statutes, and ordinances for the public peace, welfare and good govern“ment of our said colonies and the inhabitants thereof, as near as may be agreeable to "the laws of England, and under such regulations and restrictions as are used in our "other colonies." Then follow letters patent under the Great Seal, or rather a proclamation of the 26th of March, 1764, whereby the King recites, that he had ordered a survey and division of the ceded islands, as an invitation to all purchasers to come and purchase upon certain terms and conditions specified in that proclamation. The next instrument stated in the verdict is the letters patent bearing date the 9th of April, 1764. In these letters there is a commission appointing General Melville Governor of the island of Grenada, with power to summon an assembly as soon as the situation and circumstances of the island would admit ; and to make laws in all the usual forms with reference to the manner of the other assemblies of the King's Provinces in America. The Governor arrived in Grenada on the 14th of December, 1764: before the end of 1765, the particular day not stated, an assembly actually met; but before the arrival of the Governor at Grenada, indeed, before his Commission, and before his departure from London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the Great Seal, bearing date the 20th of July, 1764, and reciting that in Barbadoes, and in all the British Leeward islands, a duty of four and a half per cent. was paid upon goods exported ; and reciting further: "Whereas it is reasonable and expedient, and of importance to our other sugar "islands, that the like duties should take place in our said island of Grenada; we have "thought fit, and our royal will and pleasure is, and we do hereby, by virtue of our "prerogative Royal, order, direct, and appoint that an impost or customs of four and "a half per cent. in specie, shall, from and after the 29th day of September next ensuing "the date of these presents be raised and paid to us, our heirs and successors, for and "upon all dead commodities of the growth or produce of our said island of Grenada that "shall be shipped off from the same, in lieu of all customs and impost duties hitherto collected upon goods imported and exported into and out of the said island, under the "authority of his Most Christian Majesty, and that the same shall be collected, &c."; then it goes on with reference to the island of Barbadoes, and the other Leeward islands. The jury find that in fact such duty of four and a half per cent. is paid to his Majesty in all the British Leeward islands. And they find several Acts of Assembly which are relative to the several islands, and which I shall not state, as they are public, and every gentleman may have access to them. These letters patent of the 20th of July, 1761, with what I stated in the opening, are all that is material in this special verdict. Upon the whole of the case this general question arises, being the substance of what is submitted to the Court by the verdict: Whether these letters patent of the 20th of July, 1764, are good and valid to abrogate the French duties, and in lieu thereof to impose this duty of four and a half per cent., which is paid by all the Leeward islands subject to his Majesty." That the letters are void has been contended at the bar, upon two points: (1) That although they had been made before the Proclamation of the 7th of October, 1763, the King by his prerogative could not have imposed them; and (2) that, although the King had sufficient authority before the 7th of October, 1763, he had divested himself of that authority by the Proclamation of that date. A great deal has been said, and authorities have been cited relative to propositions in which both sides exactly agree, or which are too clear to be denied. The stating of these will lead us to the solution of the first point. I will state the propositions at large: 1 See Proclamation of 1763, p.119. This is only a paraphrase and not a verbally correct transcript of the section quoted; see p.120, last paragraph. 2 That this Commission was practically the same as that for the Governor of Quebec is evident from the proceedings in connection with their draughting. See pp. 109 & 116. SESSIONAL PAPER No. 18 1. A country conquered by the British arms becomes a dominion of the King in the right of his crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain. 2. The conquered inhabitants once received into the conqueror's protection become subjects; and are universally to be considered in that light, not as enemies or aliens. 3. Articles of capitulation, upon which the country is surrendered, and treaties of peace by which it is ceded, are sacred and inviolate, according to their true intent and meaning. 4. The law and legislation of every dominion equally affects all persons and property within the limits thereof, and is the true rule for the decision of all questions which arise there. Whoever purchases, sues, or lives there, puts himself under the laws of the place, and in the situation of its inhabitants. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives while he continues there. 5. The laws of a conquered country continue in force until they are altered by the conqueror. The justice and antiquity of this maxim are incontrovertible; and the absurd exception as to pagans mentioned in Calvin's case, shows the universality and antiquity of the maxim. That exception could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. In the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws, until his Majesty's pleasure be further known. "the 6. If the King has power (and, when I say "the King," I mean in this case King without the concurrence of Parliament") to alter the old and to make new laws for a conquered country this being a power subordinate to his own authority as a part of the supreme legislature and parliament he can make none which are contrary to fundamental principles he cannot exempt an inhabitant from the laws of trade, or the authority of Parliament, or give his privileges exclusive of his other subjects; and so in many other instances that might be put. If it had The present Proclamation is an Act of this subordinate legislative power. been made before the 7th of October, 1763, it would have been made on the most reasonable and equitable grounds, putting the island of Grenada as to duties on the same footing as the other islands. If Grenada paid more duties, the injury would have been to her; if less, it must have been detrimental to the other islands; nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes that if any new duties were laid on, their condition would be the same as that of the other Leeward islands. The only question which remains on this first point then is, whether the King of himself had power to make such a change between the 10th of February, 1763, the day the treaty was signed, and the 7th of October, 1763. Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and subordinate to the constitution and parliament. It is left by the constitution to the King's authority to grant or refuse a capitulation. If he refuses, and puts the inhabitants to the sword, or exterminates them, all the lands belong to him; and if he plants a colony, the new settlers share the land between them, subject to the prerogative of the conqueror. If he receives the inhabitants under his protection and grants them their property, he has power to fix such terms and conditions as he thinks proper. He is entrusted with making peace at his discretion; and he may retain the conquest, or yield it up, on such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a conquered nation.1 To go into the history of conquests made by the crown of England. The alteration of the laws of Ireland has been much discussed by lawyers and writers of great fame at different periods of time; but no man ever said the change was made by the parliament of England; no man, unless perhaps Mr. Molyneux, ever said the 1 See however the discussion of this point by Atty. Gen. Thurlow, p.292. 18-3-24 |