cultivating of his said island, was pleased to issue his royal proclamation, inviting his British subjects to colonize in his new acquired dominions, and, as an encouragement, assuring them and the inhabitants in general already there, of the benefit of the English laws and constitution and, for that purpose, declares to this effect; reciting that it will greatly contribute to the speedy settling of his said new governments, that his loving subjects should be informed of his paternal care for the security of those in their liberties and properties who were or should become inhabitants thereof; and farther, for the effectuating of such intent, "We have thought fit to publish and declare by this our proclamation, that we have, in our 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 circumstances of the said colonies will admit, they shall, with the advice and consent of the members of our council, summon and call general assemblies within the said governments respectively, in such manner and form as in those colonies and provinces in America which are under our immediate government."

exercise of the rights of British subjects, nor of their participation in the British constitution; but one act, most important and illustrious indeed, of that freedom, those rights, and that constitution already in their possession.

And it is material to consider what is the first step which the governor is to take upon his arrival in the island, for the purpose before expressed, of giving the inhabitants the benefit of the laws of England. It follows immediately, "We have given power under our great seal to our governors of our said colonies respectively, to erect and constitute, with the advice of our said councils respectively, courts of judicature, and public justice within our said colonies, for the hearing and determining all causes, as well criminal and civil, according to law and equity; and as near as may be agreeable to the laws of England."

Here then the laws of liberty and of England are enthroned in the island as soon as ever the delegate of the executive powers arrives there, and he is sent to give them effect amongst those who were already entitled to them as British subjects, and both in criminal and civil causes, both in strict law and liberal equity; in the whole, and in the great members and distinguishing distributions, both in the objects and the manner of applying them, the laws of our constitution, the laws of England are to prevail, and, as near as may be consistent with local circumstances, are to be enjoyed as the general privilege of British sub

Having thus declared his resolution to execute the engagement in their favour by this first step, as early as possible, of calling assemblies as in the colonies and provinces in America, under his particular protection, and his inclination and desire to manifest his pater-jects, there as here. nal care of his subjects; he proceeds to shew Conformably to these repeated acts, and in the extent and justness of the accomplishment prosecution of the same intention, on the 26th of his design, by a full and particular declara- of March 1764, a second proclamation was istion of the nature, powers and design of these sued; having the same object, the establishment assemblies when called, by adding: " and we of the colonies, and declaring the same views have also given power to the said governors, already wisely adopted, and firmly engaged as with the consent of our said councils and the to the means of attaining and perpetuating that representatives of the people so to be sum- establishment; and reciting the great benefit moned as aforesaid, to make, constitute and which will arise to the commerce of the kingappoint laws, statutes and ordinances, for the dom, and to his majesty's subjects in general, public peace, welfare and good government of from a speedy settlement of the new acquired our said colonies, and of the people and inha-islands, of which this of Grenada is named the bitants thereof, as near as may be agreeable to the laws of England." Here then they saw the full idea of their becoming British subjects (which they became at the surrender) by this clear and perfect image of the beauty, order, and freedom of the British constitution, im. parted to them, and declared to be the model and foundation of their own.

But as it might happen that this benefit, thus pledged and confirmed to them, could not be immediately communicated in its full extent; his majesty provides thus; "in the mean time, and until such assemblies can be called, all persons inhabiting, or resorting to, our said colonies, may confide in our royal protection, for the enjoyment of the benefit of the laws of our realm of England." So that the enjoyment of these laws was to anticipate even the calling of the assemblies; which was not to be a commencement of their freedom, por of their

first. It gives directions for the survey of the lands, the distribution into districts and parishes, analogous to the English divisions, the culture of the various produce of the country, the apportionment of the ground into due lots for that purpose; and in general recognizes the inhabitants as his majesty's loving subjects, and provides such means as were judged expedient for their necessary support and defence, their internal order, plenty and happiness, previous to the completion of these by the enjoyment of the laws of England, which, as they had in right, they were to have speedily in possession.

In further prosecution of this design on the 9th of April 1764, his majesty was pleased to grant his royal letters patent to general Melville, constituting him captain-general and governor of the new islands, Grenada, the Grenadines, Dominica, St. Vincent, and Tobago.

This patent is set forth verbatim in the re

cord. In substance it provides for the good government of the ceded islands, gives directions to take and administer the oaths of allegiance and supremacy; gives authority to the governor, and requires and commands him to summon an assembly, describes the manner of election by the freeholders, and thus called they are to sit as representatives; and together with the governor and council to be the legislature of the country, and to make laws as near as possible to the laws of England, with the usual provision that they shall be void if not allowed by his majesty within a limited time; and hereby is finally established in Grenada a constitution, in principle and form, in the design of the whole, in the disposition of the parts, in their respective functions and joint operatious, an exact epitome of the British form of government: yet a constitution not given by the patent, but only to be put in full

exercise.

With these powers his excellency arrived in Grenada, and instantly took upon himself the administration of the government; and in obedience to his commission called an assembly and opened the scene of legislation in the year 1765.

On the 20th of July 1764, posterior in point of date to these proclamations and this patent, his majesty by his letters patent under the great seal, reciting an impost of four pounds and a half in specie for every hundred weight of the commodities of the growth of the island of Barbadoes, and of the Leeward Carribbee islands, paid and payable to his majesty and his successors; reciting the cession of the island of Grenada, and that it is reasonable and expedient that the like duties should take place there as in the other sugar islands, therefore in lieu of all customs and duties before paid by the inhabitants of the said island to the French, on goods exported and imported, imposes the above duty of four and a half per cent. and requires the governor and officers of the customs to raise, collect, and receive it to his majesty's use.

These letters patent were duly registered and publicly announced by his excellency the governor in Jan. 1765. A custom-house was erected, officers appointed to act as collectors of the customs, amongst whom the defendant

was one.

[Lord Mansfield here reminded Mr. Alleyne, that he had omitted that part of the verdict which finds that the money is retained in the hands of the defendant, by consent of the Attorney-General, in order to try the right. I only mention this, because otherwise you could not have had your action against a custom officer in this form.]

And my professional duty now leads me to contend, that it was not competent to the crown on the 20th of July 1764, the day on which the patent for raising this impost is dated, to impose a permanent tax, as this, on the island of Grenada-of course that the present sum in question was improperly exacted; the money erroneously paid, or at least without any legal obligation to pay it; and the plaintiff therefore entitled to your lordship's judgment.

As this claim is founded upon a supposition of royal prerogative, which ought to be treated with deference and respect, it will be perhaps convenient (before 1 make an essay which the importance of the point renders an anxious one to me of discharging that duty) to define what prerogative is, that I may be understood not to make any exceptions to it in general; nor to argue against a high and beneficial privilege of the crown, and as I apprehend beneficial to the people in what I conceive to be its true and proper sense. The term is too often received with indignant jealousy by an English audience from mistaken notions of it, which were formerly entertained, and which bave excited prejudices surviving, as is common, the particular causes which gave them rise. To anticipate any such misapprehensions, I beg leave to offer this definition of prerogative, in which, I trust, I shall have your lordship's support: Prerogative is that portion of political power, which the constitution has intrusted with the crown for its own and the public honour and security.*

There are a few facts in this case which are introductory to the direct point in argument, and those therefore will merit a particular notice and comment.

First, the effect of the proclamation of the 7th of October 1763. The substance of it is, a recital of the benefit naturally resulting to the British empire from a system of colonization in Grenada; and in order to invite the naDuring these transactions several of his ma-tural subjects of that country, on whom najesty's subjects, induced by the royal promises so frequently made, resorted to Grenada and became purchasers of lands therein. Amongst the first of whom was Alexander Campbell, esq. the present plaintiff; whose plantations succeeded, and he was about to ship off his sugars from the island of Grenada to the London market, when he was interrupted by the defendant demanding this payment of the impost already stated: the jury find he paid it, and that the same is the money on which the action is brought: the verdict concludes in the proper form, and leaves to the Court whether on the whole of the case the impost be legal.

turally would be the first dependance, and by whom there was the fairest prospect of answering this desirable end;-to invite them to settle there, it repeatedly assures them that a constitution as soon as possible shall be formed in exact conformity and representation of the English government; whereby all powers of state should be duly distributed, and lodged in hands competent to execute it to the freedom of the subject and the security of the infant

* Prærogativa est jus regis bonum et antiquum, in decus et tutamen regni, secundum bonas et antiquas populi libertates, et juris Anglicani leges et consuetudines,

The same observations will shew that the crown held it neither impracticable nor dangerous to introduce the laws of England, and establish freedom in this conquered country.

colony, by a full participation of our wise and admirable constitution. Then follows the proclamation of the 26th of March 1764, putting the country in order, and preparing the face of it to rejoice as it were in the laws it was to re- From the whole I argue, that the inhabitants ceive: then follows the patent to governor Mel- of Grenada were considered as a colony anville, with an immediate execution of these en- nexed to the crown of England, and not to be gagements, in part, by directing him to con- governed by the laws of conquest; but on a stitute courts of judicature, for the administra-plan similar to that which issues from the comtion of the whole internal policy of the country, as near as possible to the laws of England; and to call assemblies as soon after as was possible, in the very effigies of the English constitution, with the same powers, and to the same ends of public freedom, order and happiness, and of maintaining a similitude between the parent state and the colony.

mon centre, and pervades the whole system of our American settlements.

If this be granted, and I see not how it can be questioned, consistently with facts, I then conclude by direct and necessary inferences from premisses which I think clear and uncontrovertible, that every constitutional right of the British subject necessarily belonged to them; they were entitled to call upon the crown to secure those rights, and were competent by every legal means to defend those rights.

Of course the crown could assume no legis

manent tax; for taxation at least requires an act of legislation. These observations, which would all result, and I should think irresistibly, from the single proclamation of the 7th of October 1763, receive additional force from the second proclamation, and from the patent to Mr. Melville, which shew the same opinion in the royal mind, the same purpose, the same idea, and repeat the same assurances to the subject; and, if it were possible to make them clearer or more certain, they would have that effect: however, at least they cannot weaken what was clear and certain before; they would

How wise, how politic the measure! for the crown at that time conqueror of Grenada, the old inhabitants subjected to the laws of conquest, it might naturally be presumed that British subjects would be jealous of such a power, and disinclined to settle where, underlative power over them; could impose no perthe circumstances, not only a change of place, but a change of political relation might ensue. To remove these suspicions, if any yet remained-for his majesty, both by the terms under which his general had received the surrender, and by the stipulations of the treaty of peace, had given assurances of better things to the old inhabitants themselves, with whom he had been at war; and had wisely, and as became the honour of a king of Great Britain, disclaimed to govern in the spirit of conquest when he had sheathed the sword.-But to give the fullest satisfaction to the inhabitants in general, and to those particularly of his own sub-strengthen it, if it had need of strength. jects who should be inclined to settle, the proclamation declares that all the inhabitants there, or who should in future resort thither, should have the full enjoyment of the laws of England. This construction arises from the true meaning of the words, if any words of our language admit a definite sense; it appears forwarded and enforced by the subsequent acts just now stated. And the necessary effect of this great and solemn instrument is a waiver of the rights of conquest, whatever they were before. By the proclamation of 1763, in the most explicit terms a recognition is made, of the practicability of governing this island of Grenada by the laws of England, and a receiving of this sometime conquest as an English colony; and, until I hear the contrary, a short argument shall evince it.

From them we get to the exact point of the argument, "Whether the crown, on the 20th of July 1764, possessed a legislative authority over the island of Grenada ?""

The technical learning of Westminster-hall can give but little assistance in the investigation of this question. The great principles of the law of empire must determine it; to which the political history of England affords particular illustrations.

This course I shall pursue, and, as I proceed, shall glean up the learning to be found in the books; from which progress, I trust, I shall safely draw that conclusion, which forms the ground whereon my client now stands hoping success, and I trust, not hoping it in vain; since I hope to prove he has on his behalf the most powerful advocate, and most prevailing in this court, justice and right.

A constitution is promised; but that might be a work of time to complete and execute in The principles of the law of empire are actual operation. In the mean time however, founded in the social nature of man.-As nacourts of judicature are erected; they shall tural law is derived from natural connections; administer justice, and the measure of this ju- so political law is derived from social connecdicial conduct shall be the laws of England. tions. That considers him as a creature as he Can this be compatible with any principle of came from his mother's hand; this as a memconquest? Can the benefit of the laws of Eng-ber of society paying obedience to the laws of land be enjoyed, without laying aside the go- his community, and reciprocally deriving provernment of a conqueror! Certainly not. The tection from them. strong hand of power enforces the laws of arms; the peaceful voice of law, secures the enjoyment of the rights of British subjects.

From hence arises one incontestable principle-so long as he pays due obedience to the law, so long he is entitled to its security; pro

vided he continue in a place where the exercise of that law is practicable; if he quit his native soil and resort to a foreign state, the municipal constitutions of his country being not the measure of his civil conduct there, protection for a while is suspended, it intermits until his

return.

If he resort to a country newly acquired by arms, though by his own state; there, if the necessity of the state requires that such country be governed by more rigorous means, he must submit to them; but if he resort to a newly discovered country or colony; and settle there under the auspices of the mother state, there the laws of his original country still afford their protection, as far as may be agreeable to the local circumstances of that country to which he has arrived; and still are the measure of his civil conduct: the executive magistrate shall frame a constitution for him to secure his birth-right, with every appendage of his ancient government.

Let us now, to close this part of the argument, hear the legal authorities of our own country. We shall find the general learning of Westminster-hall coincide with this theory. In Blankard and Galdy, 2 Salk. 411, lord Holt, chief justice (says the reporter,) and the whole court with him, held thus :

1st, In case of an uninhabited country newly found out by English subjects; all laws in force in England are in force there.

2d, Jamaica being conquered, and not pleaded to be parcel of the kingdom of England; the laws of England did not take place there, until declared so by the conqueror or his

successors.

The first point expressly maintains the propo sition of Vattell, and his majesty has put Grenada in express terms upon the same footing with "the other colonies;" therefore all the laws of England (so far as is agreeable to that island) are in force there.

But further as a conquered country, the conqueror has declared that the inhabitants of Grenada shall enjoy the laws and constitution of England, which brings it within the second point.

Agreeable to this is what is reported by the master of the rolls in 2 P. W. 75, of a determination before the king in council, upon an appeal from the foreign plantations, that if there be a new and uninhabited country found out by English subjects, as the law is the birth-right of every subject, so wherever they go they carry their laws with them; and therefore such new formed country is to be governed by the laws of England, then in being when they first settled.

This necessarily follows from the principle 1 first proposed; and it is hardly necessary to resort to an authority where reason is so clear: yet, I am happy to refer to the illustrious name of Vattell, and fond of this occasion of mentioning it with deserved veneration, and I hope to be excused, if I indulge the pleasure of quoting him, with some vanity perhaps, when I find my notions graced by his authority. In Q. 10, sec. B. 1. Your lordship will find him expressing himself in these words, "When a nation takes possession of a distant country and settles a colony there, that country, though separated from the principal establishment or mother country, naturally becomes a part of the state, equally with its ancient possessions. Whenever therefore the political laws, or treaties, make no distinction between them, every thing said of the ter-quered. ritory of a nation ought also to extend to its colonies."

If therefore the political laws are co-extensive with the territory of the state, however disjoined in space, as this excellent author decides they are, then every constitutional right of the subjects of that state is co-extensive with its territory; the fundamental laws of the state are equally so, and personal liberty and private property alike universally protected.

This necessarily follows from his general position; but, though I illustrate my argument by this quotation, I do not shelter myself under any foreign authority; nor merely under authority of whatever growth: I appeal to the light of reason, that a change of place can never merely as such operate a forfeiture of original social rights. True, as I have before said, it may sometimes suspend the enjoyment of these rights under peculiar circumstances of policy; or make some of the laws of the parent state inapplicable from difference of situation: but the mere act of colonization never can suspend, whilst the operation of the law continues practicable, far less can it annihilate these rights,

As to the second point, it goes to be sure on too large a ground, in supposing conquest gives a property to the conqueror in the people con

This principle is taken up by Mr. Justice Blackstone in his Commentaries, who allows the doctrine, and the exceptions to it which he makes in general are such as result from the inconveniences which would fall on the colony, from a general adoption of the laws of the parent state.

Every day's experience before the council warrants this principle: the laws of descent and of all real property are current in Ireland, and in every plantation; in every part of the empire. By what law? By none positive there; but as a necessary consequence of the country being a part of the British empire.

If this be so, what was the situation of Mr. Campbell and his countrymen at and prior to the 20th of July 1764? They were British subjects: they were settled in a new acquisition: the laws of England were practicable amongst them: no peculiar circumstances of policy required the suspension of them. His majesty, the supreme executive magistrate of the state, competent to decide on the propriety of introducing the laws of England into Grenada, has declared such propriety; has introduced them, Then, by necessary consequence,

I have spared no pains to inform myself of the history of these transactions; and, after a diligent research through the writings of Dr. Leland in his history of Ireland; of sir Johu Davies in his discoveries, and the case of TaBy what mode of reasoning then am I to nistry in his reports; of Dr. Harris in his Hilearn that his majesty had at this time a legis-bernia; and of Mr. Molyneux in his contest lative authority over the island of Grenada? To make temporary regulations on a sudden until all was finished, was the extent of his prerogative; to impose a permanent tax was, as I submit, illegal.