No flowers of rhetoric, no arts of speech Em. Guild. Em. I'll teach thee how to bear it; I'll grow proud, When cruel flight, or killing fcorn falls on them. Come wounded modefty, come flighted love, Come fcorn, come confcious worth, come black despair! But for thy fake, my dear, fond, injur'd father, Thou hast a brother; He shall affert thy cause. Firft ftrike me dead! No, in the wild distraction of my fpirit, [Kneels. Hear my fond pleading-fave me from that curfe;' Thefe tender claims have yielded, I adjure thee Before the tragedy are printed a poetical prologue written by the fair Authorefs, and a humorous epilogue by Mr. Sheridan. ART. X. The Canadian Freeholder. Vol. II. Concluded. See Review for September laft, p. 171; where the Title, at length, is recited; and which ought to be reperuled, to affift the recollection of our Readers. WE have feen, in the courfe of this volume, that the general principles on which the king's legiflative authority over conquered countries is afferted by Lord Mansfield, are either deftructive of the very purpose they were produced to ferve, or fall extremely fhort of the point they were intended to establish. When reafon fails, or is filent, recourfe must next be had to authority, and to precedents. The teftimony of hiftory is accordingly brought forward by Lord Mansfield, to fhew, that the Crown has, in numerous inftances, actually exercised this fuppofed authority. His inftances are drawn from Ireland, Wales, Berwick upon Tweed, Gafcony, Calais, New York, Jamaica, Gibraltar, and Minorca. The exertion of a legislative power, and the exercife of a legislative right, are by no means fynonymous terms. Hiftory may atteft the one, buc A but fomething more than hiftory ought to prove the other. the fame time, it must be confefled, that the practice of pa ages is, in general, a fafe rule to guide thé judgment of the prefent. It vouches the opinion of men who had accefs to more information than we can be poffefied of; and though we do not take their word for the juftnefs of a conclufion, when the premises are as open to us as they were to them, yet we may reasonably fuppofe, that as they were placed nearer the fountain, they were acquainted with many facts, many evidences of the right, which are now funk in the stream of time, or have been washed away by the length of its courfe. Our Author owns, very candidly, that if the arguments from history in favour of this legiflative authority of the Crown, are clear, and positive, and uniform,' they must have great weight; but he is of opinion, that in the prefent cafe, none can be alleged which poffefs thefe qualities, and that thofe mentioned by Lord Mansfield are entitled to very little regard. We fhall 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 confult his very accurate hiftorical detail, will find themselves abundantly rewarded by much curious and valuable information. We fhall content ourselves with giving the recapitulation of the principal heads of his argument, in the words of one of his dialogifts, With respect to Ireland we oblerved, 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 legiflator of it; which we agreed to be by no means a jutt conclufion, there being a manifeft difference between a power in the conquering king to introduce, once for all, immediately after the conquest, into the conquer. ed country the laws of the conquering country, and the regular, permanent, legislative authority by which the laws of the conquered country may, at any time after, be changed at the pleasure of the legislators, (whoever they are,) not only by introducing into it the Jaws of the conquering nation, but any other laws whatfoever, and this as often, and in as great a degree, as the legiflators fhall think fit. And we further obferved, that Lord Coke, in the paffage quoted from this report of Calvin's cafe, has exprefsly declared that the kings of England were not poffeffed of this permanent legislative authority over Ireland, not having a right to alter the laws of England, (when once introduced there by King John,) without confent of parliament; and that Lord Mansfield has adopted this opinion of Lord Coke, though it clashes with the conclufion which he laboured to draw from this cafe of Ireland in favour of the king's fole legiflative power in the island of Grenada. And we further obferved that, for fome centuries paft, at leaft, the laws which have been made for the government of Ireland have 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 exercise of fuch a fole legislative authority in the Crown 3 rown over a conquered country, as Lord Mansfield afferted to have anged to it in the cafe of the island of Grenada before the pubtation of the royal proclamation of October, 1763. Thefe, I ink, are the principal remarks we agreed upon concerning Ireland. With refpect to Wales, it appeared to us, that Lord Mansfield adriaken two very material facts relating to it. For, in the firft ace, he afferted that that country had not been a fief of the crown of ng and before its complete reduction by King Edward the It, notsthitanding King Edward, in the famous Statutum Walliæ, paffed imediately after the reduction of it, exprefsly declares that it had been , and notwithstanding a cloud of paffages in that venerable old iftorian, Matthew Paris, (who lived in the reign of King Henry e Illd, king Edward's father) which prove, that it was in fuch a ate of feudal fubjection to the crown of England throughout all the eign of King Henry the IIId, and for feveral reigns before. But, 1 oppofition to thefe decifive teftimonies, Lord Mansfield will have 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, duced by his victorious arms, to be a dependent dominion of the rown of England; but that, for fome reasons of policy (which, owever, Lord Mansfield does not ftate, nor even hint at) King idward thought proper to declare it to have been in a state of feudal ubjection to the crown before his conqueft of it. And here we obrved, that Lord Mansfield reasoned inconclufively, even from his wa affumed state of the fact. For, if Wales had not been a fief of he crown of England before King Edward's reduction of it, but had een (as Lord Mansfield fuppofes) an abfolutely independant state until hat time, yet, if King Edward had, for any reafons of policy, thought t to confider it (though falfely) as having been before in a state of endal fabjection to the crown, fuch a plan of policy in King Edvard would have rendered Wales an unfit example of the exercife f the power of a king of England over a conquered country; beaufe it must be fuppofed that King Edward would, in fuch a cafe, ave exercifed only fuch rights of government over it as were comatible with the political fituation in which he would have thought tto place it, which would have been that of an ancient fief of the rown reduced into poffeffion. And we obferved also, that he had ifconceived another material fact relating to this country, with espect to the power by which laws were made for the government of after its reduction by King Edward. For he afferts, that King dward made laws for it by his own fingle authority, notwithstandg it is exprefsly declared by that king himfelf, in the preamble of is famous Statutum Wallia, above-mentioned, that the laws he then tablished for the government of it were made de confilio procerum ni nofiri, or by the confent of his parliament. Thefe miftakes we obferved to have been made by Lord Manseld in what he said concerning thofe two great examples of Ireland and Wales; which are alfo of too great antiquity to have much weight in determining a question concerning the conftitution of the English government at this day. We then obferved that all the other inftances that were mentioned by him, except thofe of Gibraltar and Minorca, are of no import ance 1 ance to the queftion. Thefe inftances were the town of Berwic upon Tweed, the dutchy of Guienne, or Gafcony, the town of Calais in France, the province of New-York in North America, and the island of 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, any more than he is of the cities York, Bristol, Exeter, and twenty other towns in England, which are governed alfo 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 dutchy of Guienne, or Gafcony, and the town of Calais in France, they were not acquired by the kings of England by conqueft, but by marriage and inheritance, and confequently ca afford no example of the power of the Crown over conquere countries. And the province of New-York in America is an unfit example for this purpofe, becaufe, though perhaps in truth it might be mere conqueft made upon the Dutch in the year 1664, after the had been many years in quiet poffeffion of it, yet it was not fo con fidered by King Charles the Second, who took it from them, but was claimed and feized upon by his order, as a part of the territory af the more ancient English colony of New England, into which, was pretended, the Dutch had intruded themfelves without the per miffion 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 fleet, which was fent to take poffeflion of it, had failed from Erg 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 firf Dutch war. As, therefore, it was not confidered by the Crown as a conquered country, the government established in it cannot be juftly cited as an example of the authority of the Crown over conquered countries. And nearly the fame thing may be faid of the island of Jamaica; fince Lord Mansfield tells us, that he had found, upon inquiring into the history of it, that it had been almoft intirely abandoned by 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 English fettlers at, or foon after, the reftoration of King Charles the Second in 1660; infcmuch that it had been confidered ever fince that period as an English plantation, and not as a conquered country. For, if this be true (as I do not doubt it is,) it readers this ifland an unfit example of the exercise of the legislative authority of the Crown over conquered countries. I mean only, however, that it is not a direct example for this parpefe: for indirectly, I acknowledge, both this ifland and the province of New-York may be ufed as arguments in favour of this authority, by reafoning as follows. "The power of the Crown over a conquered country must be at least as great as it is over a planted country, or colony. Therefore, fince the king of England exercised legislative authority over the island of Jamaica for about twenty years, without the concurrence of either the English parliament or an an affembly of the people; and fince 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 confidered as conquests, but as plantations of Englishmen ; it follows, à fortiori, that in countries that are not only conquered, but confidered as conquered, the Crown may lawfully exercise the fame authority." This would have been a tolerably plaufible argument, and much fronger than any of thofe which Lord Mansfield made ufe of in that judgment. But he did not make use of this argument; and indeed could not, confiftently 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 impofing taxes, but the king and parliament conjointly, or the king and the affembly 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 ufe of the foregoing argument à fortiori in favour of the king's fole legiflative authority over conquered countries, which is built upon the fuppofition of his Majefty's having had fuch an authority over planted countries, or colonies; because he denied the exiflence of the latter authority, which is its foundation. According to Lord Mansfield's doctrine, therefore, of the king's not being the fole legiflator of planted countries, the inflances of New-York and Jamaica cannot afford the above indirect argument à fortiori in fupport of the king's fole legiflative authority over conquered countries. Nor can they afford a direct argument, independently of the confideration of planted countries, in fupport of this authority; becaufe thofe places, or provinces (though really conquefs) 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 are any fuch at this day) as would go further than Lord Mansfield in their notions of the king's legislative authority, and would fay, that the king is the fole legiflator not only of all conquered countries, but of all planted countries in which he has not divested himself of his authority by fome charter or proclamation, I fhall fay nothing to it, but that I agree with Lord Mansfield in confidering the opinion of fuch lawyers as erroneous with refpect to planted countries, and that I am inclined to go beyond Lord Mansfield in thinking it likewife erroneous with refpect to conquered countries, or, at leaf, that the arguments adduced by his lordship in fupport of it in that latter cafe, are not fufficient to establish it. 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 latter of them, though an ifland of fome extent, has always been confidered by the people of England in nearly the fame 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 minifters of 1 ftate |
