6-7 EDWARD VII., A. 1907 King could not do it. The fact, in truth, after all the researches that have been made, comes out clearly to be as laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England by the charters and commands of Henry II., King John, Henry III, and he adds an et cetera to take in Edward I., and the successors of the princes named. That the charter of 12 King John was by assent of a parliament of Ireland, he shows clearly to be a mistake. Whenever the first parliament was called in Ireland, that change in their constitution was without an act of the parliament of England, and therefore must have been derived from the King.

Mr. Barrington is well warranted in saying that the 12th of Edward I., called the "Statute of Wales," is certainly no more than a regulation made by the King as conqueror, for the government of the country, which, the preamble says, was then totally subdued; and, however for purposes of policy he might think fit to claim it as a fief appertaining to the realm of England, he could never think himself entitled to make laws without assent of parliament to bind the subjects of any part of the realm. There fore as he did make laws for Wales without assent of parliament, the clear consequence is that he governed it as a conquest: which was his title in fact, and the feudal right was but a fiction.

Berwick, after the conquest of it, was governed by charters from the crown, till the reign of James I., without interposition of parliament.

Whatever changes were made in the laws of Gascony, Guyenne, and Calais must have been under the King's authority; if by act of parliament, that act would be extant, for they were conquered in the reign of King Edward III.; and all the acts from that reign to the present time are extant; and in some acts of parliament there are commercial regulations relative to each of the conquests which I have named; none making any change in their constitution and laws, and particularly with regard to Calais, which is alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitution: for the inhabitants were summoned by writ to send burgesses to the English parliament; and, as this was not by act of parlia ment, it must have been by the sole act of the King.

Besides the garrison there are inhabitants, property, and trade at Gibraltar; the King, ever since that conquest, has from time to time made orders and regulations suitable to the condition of those who live, trade, or enjoy property in a garrison town.

Mr. Attorney-General' has alluded to a variety of instances, several within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have been for years back a great many inhabitants of worth and a great trade carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily follow a conquest by the King of England) the same argument applies here; for before the 7th of October, 1763, the constitution of Grenada continued, and the King stood in the place of their former sovereign.

After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles II. changed its constitution and political form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent.

It is not to be wondered that an adjudged case in point is not to be found; no dispute ever was started before upon the King's legislative right over a conquest; it never was denied in a court of law or equity in Westminster-hall, never was questioned in parliament. Lord Coke's report of the arguments and resolutions of the judges in Calvin's case lays it down as clear (and that strange extrajudicial opinion, as to a conquest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that "if a King"-I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly exploded-"If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom; but, until he doth make an alteration of those laws the ancient laws of that kingdom remain; but if a King hath a

1 Edward Thurlow. See note 1, p.305.

SESSIONAL PAPER No. 18

kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliaIt is plain that he speaks of his own country where there is a parliament. Also, "if a King hath a kingdom by conquest, as King Henry the Second had Ireland, after King John had given to them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England.

Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting officially in a public charge or in private, are not properly authority on which to found a decision, yet I cite them ;-not to establish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it has received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and conformable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg, what was to be done if they should persist in this refusal. Their answer is-"If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants; but, if it was to be considered in the same light as the other colonies, no tax could be imposed upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occasions, traced the constitution of Jamaica as far as there are books or papers in the offices; I cannot find that any Spaniard remained upon the island so late as the Restoration; if any, they were very few. A gentleman to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names among the white inhabitants of Jamaica; but there were amongst the negroes. The King, I mean Charles the Second, after the Restoration invited settlers by proclamation, promising them his protection. He made grants of land. He appointed at first a governor and council

only; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner; not by the grants, but by commissions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown; like the cases of the islands of St. Helena and St. John, mentioned by Mr. Attorney-General.

A maxim of constitutional law, as declared by all the judges in Calvin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise made it doubtful; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited; no instance is to be found in any period of our history where it was ever questioned.

The counsel for the plaintiff undoubtedly labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration, we are of opinion that before the letters patent of the 20th of July, 1764, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada.

The first and material instrument is the proclamation of the 7th of October, 1763. See what it is that the King there says, and with what view he says it; how and to what he engages himself and pledges his word: "Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof; we have thought fit to publish and declare by this our proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circum18-3-241

The next acti- of the 16th of Mart.

settle there 12 they were

Das on which

which, the Digst i time having been seo by pro at at. . iraute further st sta be tisposed b come an tam, to use under the mastitution. It states certato terms and cit H*L*• WFTC 0 e taken. “'à' ished with a view to per.abent e nization ani the name and cultivation of the new settlement. Friarberetro stop of all this, on the 'mth of Apri.. 1764, three months before the impost in pestion was imposed, there is an actua, commission to Governor Melville, to call an assembly as son as the state and Greumstances of the island should admit:—You wil observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and counc, under his authority, or in any other method or manner, until the assembly should be called, the promise imports the contrary; for whatever construction is to be put upot it, (which perhaps it may be somewhat dificult to pursue through all the cases to which it may be applied, it apparently considers laws then in being in the island, and to be administered by courts of justice; not an interposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called: it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly. We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island of Grenada-in general to all whom it might concern-that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King.

Therefore, though the right of the King to have levied taxes on a conquered country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the finding of the verdict, paid in Barbadoes and all the other Leeward islands; yet by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is inverted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only now be done, to use the words of Sir Philip Yorke and Sir Clement Wearg, “by the assembly of the island, or by an act of the Parliament of Great Britain." The consequence is, judgment must be given for the plaintiff.

1 Since Canada came equally with Grenada under the Proclamation of Oct. 1763, the chief features of this paragraph apply closely to the Canadian case and represent the claims so constantly put forth by the English element in their petitions.

2. See preparations for the issue of Commissions for Governors Melville and Murray, among others; pp. 109 & 116.

SESSIONAL PAPER No. 18

MASERES TO THE LORD CHANCELLOR.1

April 30th 1774.

MY LORD,

Inner Temple I took the liberty of communicating to your Lordship some time ago the testimonies of Mr Le Brun,' the French lawyer at Quebeck, and M' Du Mas Saint Martin, the justice of peace at Montreal, concerning the favourable reception my French. memoire had met with in Canada from the Canadians as well as the English. I now beg leave to add the testimony of Mr De Lisle, the protestant minister and Chaplain of the garrison at Montreal, a native of old France, and Colonel Christie, a Scotsman of an excellent understanding and easy fortune, and who has known Canada ever since the conquest of it, and who is proprietor of two valuable seigniories in it; both to the same purpose. Mr De Lisle writes as follows-"Your answer to Mr Cugnet is universally admired and applauded by both English and Canadians."

And Colonel Christie writes in these words. "I can assure you that your mémoire à la défense du plan d'acte &c. has given the greatest satisfaction to all your friends : and the priests themselves, and every sensible Canadian, allow you the merit you are justly intitled to for that performance." This expression of the priests themselves and every sensible Canadian. I cannot but look upon as a strong testimony in favour of the plan for settling the laws recommended and defended in that memoire-and therefore I conclude that the Canadians themselves do not look upon it as a wild or visionary scheme, oppressive to them, but as reasonable and practicable and beneficial to the province, and that they are contented with the degree of French law thereby continued amongst them, which consists of all their law concerning the tenures of land, or the mutual rights and obligations of Seignior and tenant, and all their laws of conveyancing; and with respect to marriages already contracted, and the offspring of them, their laws of dower and inheritance; and with respect to future marriages the English law of dower and tenancy by the courtesy and other English laws relating to the civil effects of marriage, unless they shall provide otherwise by their marriage agreements, which they are impowered to do, and which it will be extremely easy for them to do, it being their general custom to make marriage agreements in writing, even where they have no property to settle; and with respect to inheritance by children born of those future

1 Canadian Archives, Dartmouth Papers; M 385, p. 272.

2 Referring to an extract from a letter of Mr. Le Brun, a lawyer of Quebec, dated Jan. 8th, 1774, "Containing the sentiments of himself and divers other Canadians concerning my draught of an act of parliament for settling the laws of the Province of Quebec." M 384, p. 240.

3 Mr. Saint Martin was "a French protestant residing at Montreat (who was formerly a subject of the French King,)" A summary of his letter of Jan. 7th, 1774 is given in M 384, p. 243.

4 Referring to his "Memoirs à la Défense d'un plan d'Acte de Parlement pour l'Etablissement de Loix de la Province de Quebec, Dressé par Mr. François Maséres, &c. &c. contre Les Objections de Mr. François Joseph Cugnet, &c. &c. A Londres, 1773." This, in turn, refers to Maseres' "Draught of an Act of Parliament for Settling the Laws of the Province of Quebec," of which he made two draughts. The first was issued in Aug. 1772; and of this he sent a copy to Lord Dartmouth, and also submitted it to the consideration of a number of others, English and French. Among the latter was M. De Lotbiniere who criticised it quite freely. His criticism Maseres also sent to Lord Dartmouth, Jan. 7, 1773, with the following remarks-"These remarks I (with the privity and approbation of Mr. Thurlow, the AttorneyGeneral,) desired Mr. de Lotbiniere to reduce to writing, though I knew they would principally be censures upon the things I had proposed. But I wished that both sides of the question might be known to his Majesty's Ministers, that they might be the better able to resolve ultimately upon what was just and reasonable." M 384, p. 36. On March 29th, 1773 he sent a new draught of the act to Lord Dartmouth with the accompanying letter:-"Mr. Maseres presents his respects to Lord Dartmouth, and desires his Lordship's acceptance of the copy herewith sent of a new draught of an act of Parliament for settling the laws of the province of Quebec, which he has prepared in consequence of some remarks made on the former draught by a Canadian gentleman of abilities, who has complained that some things in the former draught are asserted and proposed without sufficient grounds and reasons. To obviate this objection, the grounds and reasons of the principal things contained in this new draught are set forth at great length. The provisions themselves are much the same as in the former draughts, which had the honour of being approved by Sir Eardly Wilmot." March 29, 1773. M 384, p. 59. Sir John Eardley Wilmot, after filling several important legal offices, had just resigned from the position of Chief Justice of the Court of Common Pleas. The chief points dealt with by Maseres in his Draught of an Act" &c. are given in this letter to the Lord Chancellor.

6-7 EDWARD VII., A. 1907 marriages, not the English law of inheritance, but a certain intermediate law of inheritance, less different than the English from their own former law of inheritance, and particularly suited to that province and fitted to preserve in its original state that wise distribution of the lands in Canada which most people have thought worthy of Admiration, and to prevent the great inconveniences arising from the indefinite subdivision of small por tions of land, which has long been a subject of complaint amongst them, and which the King of France endeavoured to remedy by another method so long ago as the year 1745. And this new law of inheritance is also left subject to be contrould by the Canadians by their last wills or marriage-settlements, or other deeds in their life time. The rest of the plan establishes the English laws of the Admiralty, in order to preserve an uniformity on that subject between the Port of Quebeck and the other ports in America, and the English criminal law, which has been followed now for ten years with the general approbation of the Canadians, and the English law of Habeas Corpus in its most beneficial extent, which, I presume, cannot be disagreeable to any people. I hope your Lordship will excuse the trouble I have presumed to give you in stating these reasons in defence of a plan which I had bestowed much time and pains in preparing, and which appears to have been well received and approved by the Canadians themselves, who were the persons most likely to complain of it.

I remain your Lordship's most obedient and humble Servant

Addressed:-To

The Right Honble Lord Apslie,

Lord High Chancellor of Great Britain.

FRANCIS MASERES.

MEMORANDA AND DRAUGHTS OF BILLS RELATING TO THE SUBJECT OF THE QUEBEC ACT.

MEMORANDUM ON GOVERNMENT OF QUEBEC."

A MEMORANDUM of things necessary for establishing Laws & Government in the Province of Quebec, either by Act of Parliament, Order of the King in Council or by the proposed Council at Quebec.

First, To get rid of the Proclamation of 1763 with the Commissions & Ordinances depending thereon and to restore the old Law and Constitution.

2dly To accomodate the Duties & Taxes paid at the time of the Conquest to the change of Dominion.

1 See note, p. 241.

2 The following memoranda, suggestions, and draughts of bills relating to the Quebec Act have been found among the Papers of Lord Dartmouth, under whom, as Colonial Secretary, the Quebec Bill took shape, and by whom it was finally introduced in the House of Lords on May 2nd, 1774. Most of these are without date, address, or signature, to indicate when, for whom, or by whom they were prepared, nor are they arranged in chronological order. However, by internal evidence, by comparisons between them. and with other documents, and with the aid of a few notes which passed between the parties chiefly con cerned in framing the measure, it has been possible to identify most of them and trace the normal order of their development.

$ Canadian Archives, M. 385, p. 326. This memorandum would appear to have been the outcome of one or more of the conferences of an inner circle of the Ministry, with special advisers such as Carleton, in dealing with American policy. The features suggested are not in accordance with any one of the Reports on the subject which had been made to the Government. Notwithstanding the numerous declarations, during the previous seven years, that the system of law and government in Quebec was on the point of being settled, the members of the Government chiefly responsible for the policy of the Quebec Act had not apparently given the matter very full consideration before the latter part of 1773, as may be gathered from the following statements. On Aug 4th 1773, the Lord Chancellor sent the following note to Dartmouth, "The Chancellor's Complimets to La Dartmouth, takes the liberty to send him some Papers relative to Canada, which together with the Reports of the Kings Advocate, the Attorney Gen & the Sollicitor Gen will, he believes, enable his Lordship to form a plan of Government for that Province, fit to be laid before Parliament; & the Chancel lor is happy in having received assurance from his Lordship that He means to undertake it." M 384, p. 178.