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No flowers of rhetoric, no arts of speech
Can change the fact-Orlando has refus'd me.
Think no more on't :
I think I could have borne it.
Thou hast a brother ;
- First strike me dead!
And tremble to become a childless father.
ART. X. The Canadian Freebolder. Vol. II. Concluded.
Review for September last, p. 171; where the Title, at length, is recited; and which ought to be reperuled, 10 afif the recolletion of oar Readers,
E have feen, in the course of this volume, that the
general principles on which the king's legislative authority over conquered countries is asserted by Lord Mansfield, are either deftructive of the very purpose they were produced to serve, or fall extremely sort of the point they were intended to establish. When reason fails, or is filent, recourse must next be had to authority, and to precedents. The testimony of history is accordingly brought forward by Lord Mansfield, to thew, that the Crown has, in numerous instances, actually exercised this fupposed authority. His instances are drawn from Ireland, Wales, Berwick upon Tweed, Gascony, Calais, New York, Jamaica, Gibraltar, and Minorca. The exertion of a legiNative power, and the exercise of a legislative right, are by no means synonymous terms. History may attest the one,
but something more than history ought to prove the other. A the same time, it must be confeffed, that the practice of paí ages is, in general, a safe rule to guide the judgment of the prefent. It vouches the opinion of men who had access to more information than we can be poflefied of; and though we do not take their word for the juftness of a conclusion, wben the premises are as open to us as they were to them, yet we may reasonably suppose, that as they were placed nearer the fountain, they were acquainted with many facts, many evidences of the right, which are now sunk in the stream of time, or have been wathed away by the length of its course. Our Author owns, very candidly, that if the arguments from history in favour of this legislative authority of the Crown, are clear, and positive, and uniform,' they must have great weighe; but he is of opinion, that in the present cafe, none can be alleged which possess these qualities, and that those mentioned by Lord Mansfield are entitled to very little regard. We shail not pretend to follow him in this part of his fubject. It would carry us far beyond the limits of our plan. Such of our readers as are inclined to consult his very accurate historical detail, will find themselves abundantly rewarded by much curious and valuable information. We shall content ourselves with giving the recapitulation of the principal heads of his argument, in the words of one of his dialogists.
• With respect to Ireland we observed, that he argued, from King John's having, by his fole authority, introduced the laws of England into Ireland, that '
he therefore was the fole legislator of it; which we agreed to be by no means a jult conclufion, there being a manifeit difference between a power in the conquering king to introduce, once for all, immediately after the conqueit, into the conquese ed country the laws of the conquering counıry, and the regular, permanent, législative authority by which the laws of the conguered country may, at any time after, be changed at the pleasure of the legillators, (whoever they are,) not only by introducing into it the Jaws of the conquering nation, but any other laws whatsoever, and this as often, and in as great a degree, as the legislators înall think fiti And we further observed, that Lord Coke, in the passage quoted from this report of Calvin's case, has expressly declared that the kings of Englad were not poffeffed of this permanent legiflative authority over Ireland, not having a right to alter the laws of England, (when once introduced there by King John,) without consent of pare jiament; and that Lord Mansfield has adopted this opinion of Lord Cake, though it clashes with the conclusion which he laboured to draw from this case of Ireland in favour of the king's role legilative power in the island of Grenada. And we further observed that, for tome centuries paft, at least, the laws which have been made for the government of Ireland have been made either with the consent 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 exercise of such a sole legislative authority in the
rown over a conquered couatry, as Lord Mansfield afferted to have plonged to it in the case of the island of Grenada before che pubcarion of the royal proclamation of October, 1763. These, I biok, are the principal remarks we agreed upon concerning Ireland. * With respect to Wales, it appeared to as, that Lord Mansfield ad ritaken two very material facts relating to it. For, in the first dace, be allerted that that country had not been a fief of the crown of agland before its complete redu dion by King Edward the Ili, no:achitanding King Edward, in the famous Statutum Wollie, palied imsediately after the reduction of it, expressly declares that it bad been 1, and notwithstanding a cloud of passages in that venerable old iftorian, Matthew Paris, (who lived in the reign of King Henry he Illd, King Edward's father) which prove, that it was in such a fate of feudal subjection to the crown of England throughout all the eign of King Henry the IIId, and for several reigns before. But, o opposition to these decisive testimonies, Lord Mansfield will have t that Wales had never been a fief of the crown of England before he reduction of it by King Edward, but was then, for the first time, educed by his vidorious arms, to a dependent dominion of the Town of England; but that, for fome reasons of policy (which, Jowever, Lord Mansfield does not ftate, nor even hint at) King Edward thought proper to declare is to have been in a state of feudal mbjection to the crown before his conquest of it. And here we oblerved, that Lord Mansfield reasoned inconclusively, even from his dyn assumed state of the fact. For, if Wales had not been a fief of the crown of England before King Edward's reduction of it, but had jeen (as Lord Mansfield supposes) an absolutely independant ftare until hat time, yet, if King Edward had, for any reasons of policy, thought it to consider it (though falsely) as having been before in a fate of endal (objection to the crown, such a plan of policy in King Edward would have rendered Wales an unfit example of the exercise of the power of a king of England over a conquered country; because it must be supposed that King Edward would, in such a case, dave exercised only fuch rights of government over it as were compatible with the political situation in which he would have thought it to place it, which would have been that of an ancient fief of the crown reduced into possession. And we observed also, that he had misconceived another material fact relating to this country, with respect co the power by which laws were made for the government of it after its reduction by King Edward. For he afferts, that King Edward made laws for it by his own single authority, notwithlandLog it is expressly declared by that king himself, in the preamble of his famous Starurum Wallie, above-mentioned, that the laws he then elablished for the government of it were made de confilio procerum Tegni nofiri, or by the consent of his parliament.
* These mistakes we observed to have been made by Lord Manskeld in what he said concerning those two great examples of Ireland and Wales ; which are also of too great: antiquity to have much weight in determining a question concerning che constitution of the Englih government at this day.
"We then observed that all the other instances that were mentioned by him, excep: those of Gibraltar and Minorca, are of no importa
ance to the question. These instances were the town of Berwick upon Tweed, the dutchy of Guienne, or Gascony, the town c Calais in France, the province of New-York in North America, and the island of Jamaica.
• All that he says of Berwick upon Tweed is, that it was governed by a royal charter. But that circumstance is no proof that the king was the sole legislator of it, any more than he is of the cities o? York, Bristol, Exeter, and twenty other towns ia England, which are governed also by royal charters.' And even that charter of Ber wick appears to have been confirmed by act of parliament in the reign of King James the First.
As to the durchy of Guienne, or Gascony, and the town of Calais in France, they were pot acquired by the kings of England by conqueft, but by marriage and inheritance, and confequently can afford no example of the power of the Crown over cooqseret countries.
And the province of New York in America is an unfit example for this purpose, because, though perhaps in truth it migbt be a mere conquest made upon the Dutch in the year 1664, after the had been many years in quiet pofleflion of it, yet it was not so cosfidered by King Charles the Second, who took it from them, but was claimed and seized upon by his order, as a part of the territory af the more ancient English colony of New England, into which, it was pretended, the Dutch had intruded themselves without the permillion of the Crown. And, upon this ground of an already-exil. ing right to it in the crown of England, it was granted away by King Charles the Second to his brother, the Duke of York, before ever the feet, which was sent to take posseflion of it, had failed from Eng. land; and it was taken poffeflion of by Colonel Nicholls, as a part of the king's old dominions, before the king entered into the fire Dutch war. As, therefore, it was not considered by the Crown as a conquered couniry, the government elablished in it cannot be juflly cited as an example of the authority of the Crown over conquered countries. And nearly the same thing may be faid of the island of Jamaica; fince Lord Mansfield tells us, that he had found, upce inquiring into the history of it, that it had been almoft intirely abandoned by the Spanish inhabitants of it soon after its conqueit by the arms of England in the year 1655, in the time of Cromwell's usurpation, and that it was occupied only by English settlers at, or soon after, the restoration of King Charles the Second in 1660; infomuch that it had been considered ever fince that period as an Englih Plantation, and not as a conquered country. For, if this be true (as I do not doubt it is,) it readers this inand an unfit example of the exercise of the legislative authority of the Crown over conquered countries. I mean only, however, that it is no: a direct example for this parpose: for indirialy, I acknowledge, both this ifland and the province of New-York may be used as arguments in favour of this authority, by reasoning as follows. " The power of the Crown over a conquered cauniry must be at least as great as it is over a planted country, or colony. Therefore, since the king of England exercised legislative authority over the island of Jamaica for about twenty years, without the concurrence of either the English parliament of
an allembly of the people; and since the Duke of York did the fams 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 Charles's letters, patent; and these two countries were not considered as conquests, but as plantations of Englishmen; it follows, à fortiori, chat in councries that are not only conquered, bot considered as conquered, the Crown may lawfully exercise the fame agthority.” This would have been a tolerably plausible argument, and much stronger than any of those which Lord Mansfield made use of in that judgment. But he did not make use of this argument; and indeed could not, consistently with the opinion he delivered concerning planted countries, or colonies : for in these he declared, that the king alone had not the power of making laws and imposing taxes, but the king and parliament conjointly, or the king and the assembly 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 island of Jamaica. He could not, therefore, make use of the foregoing argument à fortiori in favour of the king's sole legiflative authority over conquered countries, which is built upon the supposition of his Majesty's having had such an authority over planted countries, or colonies ; because he denied the exilence of the latter authority, which is its foundation. According to Lord Mansfield's doärine, therefore, of the king's not being ibe fole legislator of planted countries, che instances of New York and Jamaica cannot afford the above indirect argument à fortiori in support of the king's sole legislative authority over conquered countries
, Nor can they afford a direct argument, independently of the confideration of planted countries, in lupport of this authority; because those places, or provinces (though really conquefts) were conGdered and treated as planted countries. And therefore they ought not to have been cited by Lord Mansfield as proofs of the said authority. As to the opinion of such lawyers (if there are any fuch at this day) as would go further than Lord Mansfield in their notions of the king's legislative authority, and would say, that the king is the sole legislator not only of all conquered countries, but of all planted countries in which he has not divefted himself of his authority by some charter or proclamation, I shall say nothing to it, but that I agree with Lord Mansfield in considering the opinion of such lawyers as erroneous with respect to planted countries, and that I ain inclined to go beyond Lord Mansfield in thinking it likewise errodeons with respect to conquered countries, or, at leait, thai the arguments adduced by his lordship in support of it in that laiter cale, are not suficient to eitablimh it.
As to Gibraltar and Minorca, in which the king has made from time to time some regulations by his orders in his privy council, we have observed, that the former of these places is really nothing more than a' garrison-town, without an inch of ground belonging to is beyond the fortifications, and that the latter of them, though an island of some extent, has always been considered by the people of Eagland io nearly the same light, or as an appendage to the fortress of St. Philip's castle, which defends the harbour of Mahon;-that its civil government has been intirely neglected by the ministers of