teration of the Welch laws was made by the authority of parliament.

I am now come, my lord, to America; and shall state how the prerogative has been exercised there. One general observation may be applied to our colonies in America and the West Indies, which is, that all of them, except some of the few ceded to us by foreign states, whose constitutions have not been yet varied, derive the whole frame of their government from an exercise of the royal prerogative. Their governors, their councils, their assemblies; their courts of justice; all originate from gifts of the crown. Their legislative powers, even their powers of taxation, flow from the same source. The more early charters from the crown, those antecedent to the reign of James the 1st, were mere grants of the soil of newly discovered countries without fixing any form of government. The first charter for erecting the government of an American colony bears date the 10th of April 1606, and was to the two Virginia companies. It is worthy of notice, that by this charter the king vests the powers of government and legislation in such as should be appointed by a council of -persons resident in London, and also imposes a duty of two and a half per cent. on merchandize bought and sold within the colony. But this was before the Revolution, in times when the prerogative was too often carried beyond its due and constitutional limits; and therefore much cannot be inferred from exertions of the prerogative during such a period. However, even since the Revolution, there have been great lawyers, who have attributed to the king a prerogative of taxing such of our American and West India possessions as are countries of conquest. The case of Blanchard and Galdy, in which lord chief justice Holt and the other judges of the King's-bench recognized the doctrine in Calvin's case as to the king's general powers of imposing laws on a conquered country, and the case from Peere Williams, in which the same doctrine was laid down as law, have been already stated as a confirmation of the same principle of law.

The instances, in which the king's particular power of imposing taxes on a conquered -country has been exercised or come into question with respect to America, shall now be mentioned.

In 1686, the government of New England being seized into the hands of the crown under a judgment in a Quo Warranto, king James 2, appointed a governor and council with power to continue the former taxes, till they should settle other taxes under this commission. The governor and council passed an act continuing the former taxes, and in the year after the Revolution (and it is upon that account I speak of the case, for I should be ashamed to mention a precedent of the time of James the 2nd upon the subject of prerogative, unless it was supported by the opinion of those lawyers, who lived after the Revolution,) lord Sommers and air George Treby, upon being consulted in the

case of one Usher, gave their opinion, that the officers of the revenue who collected such taxes were not liable to any action for so doing

Lord Mansfield. The king appointed the governor and council. What were the powers given them?

Mr. Hargrave. A power to collect former taxes till they should settle other taxes; and under this commission the governor and council passed an act continuing the former taxes. Lord Mansfield. That appointment respecting the collection of taxes was temporary.

Mr. Hargrave. It was the year after the Revolution that lord Sommers and sir George Treby gave their opinions. Lord Sominers and sir George Treby were consulted upon the legality of such taxes in 1689.

Lord Mansfield. They were attorney and solicitor general, I believe.

Mr. Hargrave. Their opinion being given so soon after the Revolution becomes a very strong authority, unless a difference can be established between a tax revived and a new tax.

Lord Mansfield. How do you authenticate it? Mr. Hargrave. I have the case in my hand with the opinions upon it.

Lord Mansfield. Is it official?

Mr. Hargrave. I believe it is an official case. Lord Mansfield. Is it referred to them as officers of the crown?

Mr. Hargrave. It don't appear in whose name they were consulted; but most probably it was by the direction of the crown. [Here Mr. Hargrave stated the words of lord Sommers's opinion.]

Lord Mansfield. They considered the charter being vacated as if it never had existed, and the charter was out of the way, and they had no particular constitution given them by the crown, and so it went from the Revolution down to 1694 or 95 till the 4th of king William, their present charter was given them in the 4th of king William.

[Here Mr. Hargrave stated sir George Treby's opinion, which was much to the same effect with that of lord Sommers.]

Mr. Hargrave. I don't however mean to extend the doctrine as far as lord Sommers and sir G. Treby extend it. They seem to make no difference between a conquered country, and a colony without a government.

Lord Mansfield. You mistake it, the charter being totally void, they could have no sort of government but that which the colonies that are called provinces have. They are governed not by any charter, not as proprietory governments are by any grant or patent, but by the king's commission, and instructions added to that commission; and in process of time they had an assembly given them by the king's commission, but had no charter. The two gentlemen meant the charter was vacated, and till he gave a new charter it must be governed by the king's commission.

Mr. Hargrave. There are still more recent cases in respect to our American possessions.

In 1702 the English conquered the French part of the island of St. Christopher's; and Boon after sir Edward Northey, then attorney general, on a reference to him by the privy council, reported it as his opinion, that the queen might by letters patent impose a duty upon goods exported from the conquered part, and the reason he gave was," that the queen by her prerogative could make laws to bind places obtained by conquest and all that inhabit therein." Accordingly a duty of four and a half per cent. was imposed by the queen, that being the same duty as was payable in the English part of the island under an act of assembly. This duty on the French part was continued till the peace of Utrecht, when the possession of the whole island was confirmed to Great Britain, soon after which an act of assembly was passed extending this duty of four and a half per cent. to the French part of the island.

But there is a more recent case. In the reign of the late king the assembly of Jamaica withheld the usual grants; and this gave occasion to the crown's consulting sir Clement Worge and the late lord Hardwicke, then attorney and solicitor general, to know, whether the king bad not a right by his prerogative to impose taxes in that island. Their answer was, "That if Jamaica was still to be considered as a conquered island, the king had such a right, but if it was to be considered in the same light with the other colonies, no tax could be imposed on the inhabitants, but by the assembly of the island or by act of parliament." -It is in vain to urge against these authorities, that in Great Britain, in Ireland, and such of our colonies as were originally settled by emigrants from this country, the legislative power is not entrusted to the crown. It might perhaps be more conformable to the general nature of the constitution, and it might be more convenient, it certainly would be more uniform, if the limits of the king's prerogative were as circumscribed in a conquered country as in the realm of Great Britain. But the question to be decided here is not, what would be the best constitution, but what the constitution actually is; not what bounds ought to be set to the king's prerogative, but what its limits really are. If the royal prerogative is in this instance improper, inconvenient, and dangerous, it is the business of the British parliament to correct and reform it, and to reduce it within narrower bounds; but the business of this court is of another kind.

Lord Mansfield. You did not state sir Edward Northey's opinion fally; his opinion, I will read it, is this: "The law extended originally to such part of St. Christophet's as belonged to the crown of England. When that law was made, by virtue of that law they could not raise the duty upon the conquered part, yet her majesty may if she so pleases under the great seal of England direct and

command the like duty to be levied upon goods to be exported from the conquered part, and such commands are law there, her majesty by prerogative being enabled to make laws to bind places obtained by conquest, and all that shall inhabit therein."

Mr. Hargrave. If, my lord, I have sueceeded in establishing the first point, that the king has a right by prerogative to tax a conquered country, the only remaining consideration is, whether at the time of imposing the duty of four and a half per cent. the island of Grenada answered to that description. It is stated in the special verdict, that the island of Grenada was conquered during the late war; and there is nothing in the terms of capitulation which gives a right to the inhabitants of that island to the laws of England. By the 5th and 6th articles the inhabitants require, that they should preserve their civil government, their laws and ordinances with respect to the administration of justice, and that there should be regulations made between the governors of his Britannic majesty and them for that purpose; and in case at the peace the island should be ceded to the king of Great Britain, it should be allowed to the inhabitants to preserve their own form of government or accept that of St. Christopher's. This was what was demanded on the part of the island, but the demand was not complied with. The answer was, that they would become British subjects, but should be continued to be governed by their present laws till his majesty's pleasure should be known. So that the articles of capitulation neither stipulate a constitution nor laws for the island; but leave the royal prerogative as free and unrestrained, as if there had been a submission without any terms. But the great difficulty in the cause arises from the first proclamation, by which a provincial legislature and the laws of England are promised to the island of Grenada, and the commission to governor Melville, by which he is authorized to carry that promise into effect. It is said, that these instruments were an immediate gift of the British constitution and liberties, and of the English laws; and being antecedent to the letters patent for imposing the duty of four and a half per cent. were a waiver of the prerogative of taxing. It is true, that an administration of justice according to the laws of England was to take effect immediately, but both the proclamation and governor Melville's commission suspend the calling of a general assembly, till the circumstances of the island should admit of a change so important. It was left entirely to the discretion of the governor and his council to decide, when it should be proper to execute that part of his commission: and in fact it was not executed, an assembly was not called, till after imposing the duty. Before the first proclamation, the king was the lawgiver of the island; but he thought fit to promise a legis. lature more conformable to the general frame of our government, and he commissions his governor to fulfil that promise, when the state

of the island should permit. Till that time came, I submit, that the prerogative continued. 1 submit, that the king's legislative powers did not cease till the assembly to which he promised to transfer them was called. At a seasonable time a new legislative power was to be constituted but till that time arrived, the old one, however arbitrary, remained; and it was not the king's intention to divest himself of his prerogative sooner. To say otherwise is supposing, that the king meant to leave the island for a time without any legislature, and to quit his legislative powers before the assembly, in which he promised to vest them, was called into existence.

Lord Mansfield. There are three instru. ments. There is the proclamation, the survey in March, and the commission to the governor. Mr. Hargrave.. I did not mention the second proclamation, because it seems merely to concern the survey of the island, and the manner of granting crown lands to new settlers. Lord Mansfield. It recites the terms of the proclamation, and invites settlers upon those

terms.

Mr. Hargrave. But then I answer, it was not a part of those terms to waive the king's prerogative of making laws, till a new legislature was constituted under governor Melville's commission. A promise was made to call an assembly when the circumstances of the island should permit; and it would have been disgraceful not to have performed that promise. But it was performed. All I contend for is, that till actually executed, and till the legislature was established by calling an assembly in order to succeed to the legislative power of the crown, the king's prerogative remained the same as before. Nothing further occurs to me; and I am the less unwilling to trust to the few observations I have made in the latter

part of the cause, because it was the principal subject of the former argument.

Mr. Macdonald in reply. My lord, as I have already troubled your lordship to a much greater length than I am warranted in doing, and as I conceive I have already anticipated most of the arguments and instances mentioned by Mr. Hargrave, I shall be very short by way of reply. I shall only bring back to your lordship's recollection, that I endeavoured to explain to the best of my understanding, that the king cannot extend his prerogative power of imposing taxes beyond the time that a country becomes a regular settled part of the state-by the terms of proclamation in question, he expressly transfers to the island of Grenada, the laws of England. And to impose a tax without the concurrence of any other body, is to retract that gift: but Mr. Hargrave has said there are precedents, though not very strong, which shew the king has such power of exercising a prerogative of taxation over a conquered country. One he mentions in James the 1st's time, and at the same time he says he is ashamed to mention another in James the 2d. James the

first governed all his dominions according to his own idea of prerogative, conceiving this empire to be made up of so many small parcels, looking up to him for support, and when he drew a comparison of his subjects understanding with his own, he held that they were in proportion to bis, as a platter is to the sun in the firmament, or as the brass nails in the pommel of a saddle to the stars in the heavens.-My lord, it is most indisputably true in the general terms in which the proposition is laid down, that the king may tax a conquered country. I have admitted that he may during the war, but then and then only, and I have heard no answer to the arguments by which I confined it to that period; at least, though the king might have a power to lay on a tax before the proclamation, so soon as that proclamation was made, he waived that right, and by virtue of it allowed them a constitution, which was established completely the year after, and I submit, if that proclamation is over-ruled, it will be worse than if it had never existed. It is said with respect to the charters of New England, and other places at the time when they were resumed into the king's hands, that great lawyers soon after the Revolution gave it as their opinions, that those places were considered as conquered countries, and in the same situation as if those charters had never existed. I conceive no precedent whatsoever can warrant such opinion, but as to all the cases quoted by Mr. Hargrave and me, they are very loose, and neither can avail ourselves very much of them; but still with respect to those opinions, they talk of a conquered country without saying what it is or is not, and I hope I have shewn to your lordship that it can only be a country, held by the sword alone.

Lord Mansfield. What he says of the American instances is this, there are con

quered countries amongst them-New York in particular was conquered from the Dutch, they have their whole constitution from the argument supposes this power of giving a concrown-that is what he says, but always that stitution exercised by the king is not exclusive of parliament, there cannot exist any power in the king exclusive of parliament.

Mr. Macdonald. Mr. Hargrave at the same time says the king's proclamation is not only executory, but he has the intermediate power of imposing taxes until the assembly can sitnow if that proclamation was not capable of giving these people a constitution, which it does inasmuch as it gives them the laws of England to all eternity, they must remain as a conquered country, and the crown has not the power of doing that act which can give them the benefit of a legislature which every other colony has; if this proclamation does not give it, what is the consequence of that-what your lordship says undoubtedly must be truethe parliament can never be excluded, but then there will be a double legislative authority over this country, and parliament may do one way,

blies shall be called, with power to make laws: in the mean while the subjects to confide they shall be governed by the laws of England.

Provision made of legislation to be executed by the governor 9th of May, 1764. Patent to the governor to call an assembly as soon as convenience shall admit.

Proclamation 20th of July 1764, for levying an impost of four and a half per cent. Stated-assembly called about the end of the year 1765.

State of custom of the other islands. The impost by assembly.

State of St. Christopher's, only where there is a difference of collection; part having been subject to the king of France.

They find the impost levied on the plaintiff by the defendant; and that it is upon the impost so levied this action is brought. And on the whole matter, if the money legally col lected, then they find for the defendant; if not, then they find for the plaintiff.

The question is-whether the king has a power, without acts of assembly or parliamentary regulation, to impose any tax upon the inhabitants of the island of Grenada?

The provision for peopling the island, the commission to governor Melville for the well governing of the island, are both material.

I cannot help taking notice of the principle, on which the claim of the king is founded, to the raising of this imposition, which is, that the king has a right to exercise a despotic power over a conquered country, annexed to the dominion of Great Britain; and that this power is legally, permanently and uncontrolably in him. I think, though not necessary to this decision, it will throw light upon many points contained in it.

If it could be shewn that the law had asserted this, and no contrary decisions had denied it; that the course of history proved it; that it had ever been asserted; that there were no times in which the exercise of it had been disputed, or, if there were, that it had never been judicially contradicted; and that the king had always exercised it: however unagreeing with our principles it might appear, and however dangerous to the constitution that the king should have independent dominion; yet, if it were so upon the authorities as stated, I should hold it a very formidable argument. But I hold that the opinions have been silent; that there have been no decisions; that the course of our history has no vestiges of it; that it never has been exercised; and that every hint of it has been rejected with disgust.

That of Calvin was a question, whether a post-natus of Scotland was a natural-born subject of the king of England, after the Union; it was held he was, because the centre of unity was in the person of the king. No necessity of entering into the discussion whether it be lord Coke's opinion, or of the judges.

The general definition is—of a king of a conquered people, and a proposition is laid down generally.

"If the king make a conquest of a Christian country, their laws remain till he gives them others; but, if he makes a conquest of an infidel country, they are presumed to have no laws; he may give them what law he pleases; but guided by natural justice and equity." I quote this not for the sake of any thing but the use I shall make of it by and by, shewing, that a subsequent authority went to that only and this was an idea which was not received by your lordship the last term, but rejected with a declaration, that for the honour of lord Coke it ought not to be spoken of; as I hope it never will.

He is speaking of a king, not particularly of the king of this country; if it were to be understood to belong to any king, it would be evidently wrong as to Poland, or as to the then constitution of Sweden. If a conquest be made by a king of Poland by a Polish army, it is made not to the king personally, but to the king and senate of Poland; and so of Sweden at that time.

A very respectable author was cited to your lordship, by Mr. Macdonald, who very ably argued from his book, that all acquisitions by conquest are made for the state; and are therefore at the disposal of those who make them, that is to say, the state according to its several constitutions, and different distributions of legislative power.

In agreement with this author, who states the doctrine in a decisive manner, I think it clear that the conquest made by the state is for the benefit of the state. Execution and administration of all laws in England is in the crown; the power of making laws, according to the constitution of the state which he governs here, is in the crown with the two other parts of the legislature. When lord Coke gives his opinion, he must have taken it from writers of general law, and those for the most part of absolute monarchies; and he took the word 'king' as a general word, which, in their sense of it, comprehends the whole constitution.

Objected, that lord Coke's authority must be taken otherwise, because it has been understood in other cases to belong to the sole power of the king; and it was taken on this authority, the king had the right of making independant laws over a conquered country; and that a king was in the same state even as to a colony, unless otherwise provided by charter.

It is said that in P. W. the same point was determined. But P. W., instead of speaking of the bare power of the king, spoke of the power of a conqueror.

The concession said to be made by sir B. Shower; and that it was of consequence to them to have denied the position, if capable of being denied; was in the case of an island not inhabited when first passed by patent; so if a conquest gave any right, he said it must be over the persons of the conquered people, not over the country.

Upon a state of the history of Jamaica, supposition of fact being mistaken, the argument