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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 Man field. 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 Mf. 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 Ist'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 his, 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. Í 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.

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

the king another, and they will be subject to the miseries of a double government.

Mr. Just. Willes. Is not it the case with them all-when a legislative power is given then they are subject to this parliament also.

Mr. Macdonald. True, my lord, but I mean there is a double superior government over them: as to their own subordinate legislature, I don't conceive that to be so very material as to be classed with the others, namely, the king alone, or jointly with his parliament, and much of the misery of double and consequently uncertain government will still remain.-I submit to your lordship it is inconsistent that the king should thus have the legislative authority: as to the parliament having it, there can be no doubt of that. With regard to the opinions of lord Sommers and sir George Treby, they were given on circumstances so very particular that they cannot possibly apply to this case, in which no such circumstances are to be found; and with respect to sir Edward Northey, I must remind your lordship that he speaks of a country held by force of arms, and his opinion was that it might then be subject to the king's prerogative only; but when it becomes a colony, that is, as soon as the legislature was established, that prerogative is not to be enforced.

If the sense of the parliament was wanting, there was a bill brought in, in March 1749, in order to make the king's order law in the colonies. That was petitioned against by every one of the colonies, and thrown out.

The words of the Declaratory Act of 6 of Geo. 3, 6, 12, are as strong as possibly words can be, declaring the power of legislation and taxation over the colonies to be in the king and parliament, without any reference to the king's sole prerogative. I need not go over the ground again, for beside the crude ideas which I bave submitted to the Court, the learned gentleman who went before me has sufficiently answered every objection in the first argument; wherefore, trusting more to his ingenuity and learning than my own, I hope the judgment of the Court will be for the plaintiff.

Lord Mansfield. If neither side desire a further argument, I am ready to give my opinion. Mr. Hargrave. My lord, I am desired to request a further argument, and when I consider my own inability, I hope your lordship will grant another argument.

Mr. Macdonald. I am instructed to represent to your lordship that this is a revenue tax requiring an immediate determination, and to say that we should be glad of the judginent of the Court as soon as possible.

Lord Mansfield. It has been argued very

well.

Mr. Hargrave. My lord, it is the wish of Mr. Attorney General to have an opportunity of arguing it, the cause is of great importance, -there is great novelty in it.

Lord Mansfield. I have said, if either side desire another argument I will not refuse it. Mr. Hargrave. I am not positive whether VOL. XX.

Mr. Attorney General authorized me to say that he desired another argument. But I understand from him in conversation, that he meant to argue it the third time, which is one reason for my present application.

Lord Mansfield. Let it stand over for a third argument. 1

On Monday the 6th of June it was moved for farther argument. Stood over till the Tuesday se'ennight. Tuesday, June 14.

It was entreated it might stand over till Friday.

Lord Mansfield.-I don't see any inconvenience in going over till next term. It is your own delay. It is absolutely impossible to give judgment this term. Suppose we were all agreed, many matters are thrown out in argument which are not absolutely necessary in the decision, but of which it would be necessary to the Court to take notice.

What the value of the French duties may be, I don't know: it does not appear in the case. Suppose the Court should be against the imposition of those duties which are imposed in lieu of the French, there would arise a question concerning those duties.

Can you have any doubt upon the most material argument of all?

The first question made in the second argument by Mr. Macdonald, I think, is one of the greatest constitutional questions that, perhaps, ever came before this Court. As my brother Aston is absent, I wish, principally upon that account, that it may stand over. It is impossible it should ever be passed over in silence.

Mr. Campbell moved that judgment might be given upon the former argument, but lord Mansfield reminded him that he could get no farther, because it must necessarily come into the Exchequer; and, even if that were not the case, judgment could not have been given in the term, both on the account of the absence of Mr. Justice Aston, and as the last day would be a Wednesday.

November 7, 1774.

The Grenada cause came on for the third

argument by Mr. Attorney General on the part of the crown, and Mr. Serjeant Glynn for the. plaintiff.

Mr. Serjeant Glynn.-This case, one of the most important in its principles, and in the consequences dependent on the decision, that was ever argued, comes before the Court on a special verdict, stating that the island of Grenada was in the possession of the French king, and conquered by his Britannic majesty's arms in 1762. The inhabitants permitted to sell their lands, to the subjects of Great Britain only, by the articles of capitulation in 1763.

Proclamation, reciting the benefits from regular colonization; promising that assem

X

that is applied fails. That position, so justly reprobated in Calvin's case, is the point affirmed.

The opinion contended to be settled in that case of Blanchard and Galdy, is founded on my lord Coke's taking them, without civil po. licy, to be governed arbitrarily, according to the pleasure of the king, as he should think equity and justice; if the concession be any thing it is to be applied to that point; which ought not to be named in a court of justice. This is the principal ground of a case which, from its inaccuracy, gained so little weight with your lordship upon the last argument; if there had been others, the industry of the learned gentlemen who made the best of the last argument for the defendant, would have produced them. Taking the expression from a public writer, I apprehend my lord Coke meant merely to state the principle, not applied to any particular country; and then the king, when applied to England, means not the king solely, but the king and parliament. It is the most natural and rational construction, and is such, I think, as the argument admits.

I think it can never escape your lordship," that my lord Coke, writing without precedents or authority, must necessarily refer to the writers of public law. Mr. Macdonald has well observed, those writers generally used the word emperor or king as an arbitrary power including the whole. If lord Coke is supposed to have laid down the point, it must have been from the history of his country, and that the king from the earliest time exercised this prerogative. Though I should not have laid great stress upon authorities deduced from dark and unsettled times; nor from our Henrys, or even our Edwards, to prove, from the exercise of an act of power, the legality of the claim; (when even in that reign, when the great charter was given, there were so many violations of it, and so many afterwards, and so many confirmations otherwise not necessary.) Though for these reasons, I cannot allow much weight to acts in claim of a prerogative in those reigns, there is no instance of an absolute authority by the king over a conquered country. I don't mean to waive the benefit of what has been so ingeniously argued, with respect to the introduction of laws into Ireland by the charter: but I think Mr. Macdonald has produced an argument in proof, that the laws of England existed before that time, as it refers to them.

I think, therefore, an English constitution bad passed; and in general that it is part of the duty of the king to provide, that the English constitution shall be exercised every where over all the subjects of England, however conquered, however acquired, or wherever their situation.

The power of promulgation of laws, issuing of laws, the making preparations and proper regulations, for the introduction and execution of those laws in a country so lately receiving them, is the peculiar prerogative. Though there is an antecedent title by birth or situa

name.

With regard to Wales, (I presume many other instances will not be found of conquered countries,) the statute has always been considered as an act of parliament.

The peculiar authority given to king Edward, which could have been by no means necessary, if there had been a legislative power absolutely and independently in him (and which power was never exercised, and was held by the judges so ill agreeing with the constitution, as to be confined to the person of king Edward 1,) gives room for a strong inference that the regulation was not originally and properly in him, as of his own independant right, but derivatively from the parliament; and that in such a manner as to be at least confined to himself, and not extend to his successors.

The king would never have furnished such an argument against the exercise of legislative authority, had that power then resided in him.

All the cases have been the objects of parliamentary regulations. If he had understood it to be of his right to give laws over those countries arbitrarily, and parliament had recognized this claim; the power of making and altering, the power of abrogating would have been in him, and we should not have had the interposition of parliament.

From the author cited by Mr. Macdonald, Į will state the position.

That all conquests are made for the benefit of the conquering state; and wherever the people are composed and pay allegiance, instead of constrained submission, then they are subjects; and owe obedience to the laws of the conquering state, and hold their property from them.