66

privilege they have always enjoyed in India,rity to make the alteration? No, but I did at least since the Charter of Geo. 2nd" (this say, and I repeat, that it is the right and priwas a mistake, I should have said long be- vilege of British subjects to carry with them fore)" long before there was what is called their own laws into such a colony. If not, a Mofussil Court in existence." Against this how can the British laws be "their birthyou have produced, from the introduction to right" as stated by Blackstone? How otherBlackstone, a garbled passage, but one which wise are "both these rights" (i. e. in each "founded upon the even in that state shews that our laws are the description of colony) birth-right" of every British subject. The law of nature, or at least upon that of real passage, so far as is material, is as follows: nations? I lay but little stress upon the excepI mark in Roman small capitals the passages tion of the laws of an infidel country however which were omitted by you to suit your pur- disingenuously omitted in your quotation, because though resting on no less an authoposes. rity than the resolutions of the Judges in Calvin's case, it has been in a great degree disputed (of which you are probably in profound ignorance) by the Court of King's Bench in Campbell v. Hall, Cowper's Reports, The doctrine, however, was to a great 201. extent adopted and confirmed by a decision of the Privy Council on the 9th August, 1722, as reported in 2d Peere Williams, 75. I give you the whole, which is in any degree to the point, that you may have whatever advantage you can make out of the case.

"BESIDES THESE ADJACENT ISLANDS, OUR MORE DISTANT PLANTATIONS IN AMERICA, AND ELSEWHERE, ARE IN SOME RESPECT SUBJECT TO THE ENGLISH LAWS, Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country, or where, when already cultivated, they have been either gained by conquest or ceded to us by treaties. AND BOTH THESE RIGHTS ARE FOUNDED UPON THE LAW OF NATURE, OR AT LEAST UPON THAT OF NATIONS. But there is a differ

"If there be a new and uninhabited country ence between these two species of colonies, found out by English subjects, as the law is the with respect to the laws by which they are birth-right of every subject, so wherever they go, bound. For it hath been held that if an un- they carry their laws with them, and therefore inhabited country be discovered and planted such new-found country is to be governed by by English subjects, all the English laws the laws of England." 2dly, where the King then in being, which are the birth-right of every of England conquers a country it is a different subject, are immediately there in force. But consideration; for there the conqueror, by this must be understood with very many and very great restrictions. SUCH COLONISTS CARRY WITH THEM ONLY SO MUCH OF THE ENGLISH LAW AS IS APPLICABLE TO THEIR OWN SITUATION AND THE CONDITION OF AN INFANT COLONY."

Now, Sir, let me ask you your motive for omitting the parts which I have marked with Roman capitals, and for omitting the comma after the words "English laws then in being,' which is in the original, and by the omission of which the whole sense of the passage is altered? I omit, as you did, as immaterial, the passage which follows the above till we come to the following:

"But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, UNLESS SUCH AS ARE AGAINST THE LAW OF GOD, AS IN THE CASE OF

AN INFIDEL COUNTRY.

Again, Sir, let me ask you why did you omit the latter passage in Roman small capitals when writing upon a point of constitutional law relating to an infidel country, which this is?

saving the lives of the people conquered, gains a right and property in such people; in consequence of which he may impose upon them what laws he pleases: but, 3rdly, until given by the conquering prince, the laws and customs of the conquered country shall hold place unless where they are contrary to our religion, or enact any thing which is malum in se or are silent, for in all such cases the laws of the conquering country shall prevail. Now, to waive the question as to an infidel country, does the reason assigned for the conqueror having power to impose any laws upon the conquered people affect the native-born subjects of the conqueror? Does it in any degree justify the depriving them of their "birth-right" when they shall be invited or permitted to sojourn there? It simply decides that when a country is conquered the whole body of the people resident in that country, i. e. before conquest, are the King's enemies, and by the laws of conquest he acquires a right to give them what laws he chooses; this is frequently made the matter of treaty, or of stipulation, on surrender. If there is no treaty, no capitulation, and the King, or his officers to whom his authority is delegated, are silent upon the subject of the laws which shall for the future prevail, the existing state of things, as found by the conqueror, continues to prevail, and the conquered people tacitly retain their own laws, as they do every thing not agreed to be given up.

Your letter has forced me to send for one or two books: they will be sufficient, nay your own authority, cited by you, ought to have been sufficient, to satisfy any one who does not wish to misrepresent, that there was not one word advanced by me that was not strictly true. Did I ever say that in a conquered colony, the laws found there did not prevail But to this even there are important excepif not altered by competent authority? Did tions. The laws relating to the allegiI ever say that there was no competent autho- ance of the conquered are from the nature

of things altered. The laws of the conquer- The principle for which I contend only ing country relating to Colonial Navigation supposes that the King will act upon the and Trade, and to the abolition of Slavery or known" birth-right" of his subjects, where Torture, instantly extend to the conquered not prevented by previous treaty and condiprovince. The conquering force, Naval or tion, or some other controuling necessity. Military, is still governed by the Mutiny Act. Is the birth-right of the private subject alone

to be violated?

done, from the earliest times down to the This, I say the King of England has always latest. I admitted a competent authority to The King may impose new laws when he alter the law. That competent authority will; and the moment the retention of the differs at different times and under differcolony is so far determined on, that British ent circumstances. In the first instance, subjects generally are allowed to resort there, before actual conquest, treaty or the articles so soon does the "birth-right" of a British of capitulation, (perhaps in effect the same subject come into operation, and those rights thing) may give to the conquered people their which are founded upon the law of nature, own laws, which they would also have if the or at least upon that of nations," must be King were silent upon it, until he by his protected. It is needless to tell me that the prerogative, by proclamation alone (I repeat King is not bound to protect them. He is so the error if it be one,) or it may be by the bound. His prerogative is given to him for the advice and with the assistance of parliament, general benefit of his subjects, and as to all gave them new laws. He might, before the conquests by the mother-country, the British interference of parliament, delegate this power Parliament has the power of legislation, if to the Government; he might vest it in a legisthose rights" which natural born subjects lative assembly; he might, though it is to be acquire by being born within the King's legi- hoped that he will not see much encourageance, and can never forfeit by any distance ment for the experiment being repeated,-vest of place or time" (see Black. Com. B. I. c. 10) it in a legislative council with closed doors, are capriciously violated or improperly neg-appointed by a corporate company, but paid lected. Let it not be said that this trenches by the conquered people: all these, acting on the King's prerogative to grant by treaty, within the scope of their authority, would be or at his own free will, such laws as he may competent to give fresh laws, but until the consider best suited to the circumstances of laws of the country were so altered, the the conquered country. No such thing. I "birth-right" would remain, and must be adadmit that different conquests, according to mitted. No King would dare, without just their nature, position and circumstances, call reason assigned, to violate it. If a treaty or for different applications and extensions of capitulation fixed the terms of conquest, by the right. The Danish and German Fisher- which their own laws were to continue, the onmen and Pilots on Heligoland (its only in- ly laws in force throughout the country, this habitants) might be oppressed and without would be an alteration by competent authority, any advantage, by the introduction of Eng- a voluntary self-restriction of the natural prelish commercial and other law. Had it con- rogative, and British subjects resorting there tinued to be, as it was at its capture, the Ma- could not carry with them their own laws. gazine of British manufactured articles, to Nor would they have reason to complain. smuggle in despite the Berlin and Milan de Resorting to a conquered country that had crees those commodities into the continent. made such a stipulation, the condition on still more had it become a licensed and avow-which it consented to transfer its allegiance, ed free port and emporium of British Com-(for on the conquest the inhabitants from the merce, it might have called for the extension King's enemies become the King's subjects, of the "birth-right" of British subjects, so far as to encourage and render them (to their own feeling) secure in the promotion of the objects of the British Goverment: whilst the barren and military rock of Gibraltar, with all its original Spanish population, its mixture of French, of Dutch and Genoese, its nunnery and convents, affords an instance of the impossibility of carrying on trade and commerce for any length of time without a civil Government: within 18 years of its first capture, the British inhabitants, being then only about 200 out of about 5 or 6,000, petitioned for a Mayor, Alderman, and Council and a civil Court, whilst the Spaniards, Dutch, and Genoese were each governed by their own Consuls and Lawyers. From that time to the year 1830, the British law, though in a conquered country, more or less prevailed. In 1830 a new charter was granted, and the English laws, through an English Judge, and a Jury in criminal, and three assessors in civil cases, are now more fully established.

though Mr. Locke argues that allegiance gained only by conquest may be justly thrown off when the conquered become strong enough to do so) the British-born subject must consent to make a sacrifice of his rights corresponding to that which the King made, as one of the means to obtain without further bloodshed an accession of territory and subjects to the crown and country, and in such a case he voluntarily subjects himself to foreign, and it may be to him odious, laws, probably for some real or expected advantage of which he is willing to pay the price.

I admit also that where any known law does prevail in a ceded or conquered country, and no exception exists for a British subject, and it cannot be doubted in an independent kingdom, such as Scotland, as put by you, which has nothing whatever to do with the subject, like your other European historical cases, that he must, as any other member of a community, submit to the laws as he finds B b

them; but that is nothing to the question. I will now shew you that this right has Has he a right when he goes to settle in a been admitted and acted upon from the earconquered colony, to expect and require, if liest times in English history to the latest. In no treaty stands in the way, to take with him doing so I will also shew you that your sehis "brith-right?" There may be an objec-cond accusation against me of a want of contion to altering laws in a conquered colony stitutional knowledge, in impating to the during war. It might obstruct the negotia- King a power by virtue of his Prerogative to tions for peace, of which the restoration of all legislate for a Conquered Colony by mere conquests is frequently a principal condition. proclamation, ought to recoil on yourself. Pending any uncertainty of its restoration, That he clearly has that power, and that such the King of England might well hesitate has been determined by the Court of King's to alter the laws of any conquered colony. Bench after the fullest argument and enquiThis may be a sufficient political reason for ry. I will then establish the truth of what I postponing the establishment of the right; asserted and still assert, that this right of bebut this again has nothing to do with the ing judged by English law has been actually question. Does it all along exist, though in admitted and enjoyed in this country under the abeyance? I say it does. Has he, when all authority of the Crown of England, not mereuncertainty is at an end, when the country is ly since the Charter of Geo. 2, but long beheld out as a resort for British subjects, (whe- fore. You say that we and you (you must inther under restriction or not, is immaterial,) clude yourself) and the rest of Englishmen and a right to expect that this "his birth-right," Scotchmen, and Irishmen in India, are Now, (I his own laws so far as they are applicable, presume you do not mean to rely on Macaulay's will be conceded to him? I say he has. Black Act") subject to Mahomedan Law so far

་་

You will allow me to point out to you that as may be consistent with a Judge's idea of the you are the person in error in not distin- law of God. I tell you, we are not subject to guishing the difference between the conquered the Mahommedan law and never were, and it is my hope and trust we never may be. I country and, its retaining, if not altered by the Crown or British Parliament, its own never will be. I would rather beg my bread, laws, with however a liability to have them if I could not earn it, from the charity of at any time altered, and the rights and privileges Christians, than I would be beholden for it to

which I maintained and now maintain are the "birth-right" of British subjects in all colonies, that cannot be needlessly violated without a corresponding violation of the principles of the constitution.

64

the laws of Mahommed, administered by Mahommedans. What may be the most fitting law for you, whether that under which the infidel slaves of a Mahommedan despot have lived for uncivilized ages, or that which British subjects at home or abroad generally conI will now refer you to the opinions of sider their pride and boast, it might not be some "featherless Toads" on the same point; so civil for me to say. I must then notice you will find the two first in Chalmer's Col-what you are pleased to term passages lection of Opinions, and the latter in the 10th of English History." This they certainly vol. of East's Reports. If I have erred, to are not. I should be puzzled to assign them have erred in company with three such men a just appellation consistently with courtesy. as Lord Camden, Charles York, and Lord Ellenboro will be no disgrace. If I could ever hope to attain such legal reputation as adheres to the memory of the least of those three great men and constitutional Lawyers, I should think I had reached an eminence that men might well look up to with envy and admiration. The only possible slur upon the character of any, is the defection of C. York from his party, which he expiated by his suicide before even his patent of peerage on being made Chancellor could be sealed.

land. 66

I might perhaps apply to you what was said of a much greater man: "The Honorable Gentleman has drawn on his memory for his wit, and upon his imagination for his facts." As to the first point, namely, the way in which British laws have been introduced into conquered countries; let us take the conquest of Ireland, as one of the most aneient and most important of English conquests, or colonies-what says your friend Blackstone as to this?

"The inhabitants of Ireland are, for the "Let an Englishman go where he will, he most part, descended from the English, who carries as much of law and liberty with him planted it as a kind of colony, after the conas the nature of things will bear," an opinion quest of it by King Henry the Second; and of Mr. West, afterwards Chancellor of Ire- the laws of England were then received and sworn English subjects carry with them to by the Irish nation, assembled at the counyour Majesty's law wherever they form colo-cil of Lismore. And as Ireland, thus connies." This was in a legal opinion of Pratt, quered, planted and governed, still continues afterwards Lord Camden, and C. York, then in a state of dependence, it must necessarily Attorney and Solicitor General, for the gui- conform to, and be obliged by, such laws as the superior state thinks proper to prescribe."

dance of the Crown.

"In a place occupied by the King's troops, the subjects of England, would impliedly "At the time of this conquest the Irish carry the law of England with them." So were governed by what they called the Bresays Lord Ellenboro in the King v. Frampton, hon law, so styled from the Irish name of 10 East. judges, who were denominated Brehons."

"But King John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England, which letters patent Sir Edward Coke apprehends to have been there confirmed in Parliament?" The latter supposition is clearly an error, as I shall have occasion to show before I have finished this letter.

with the exception of the Isle of France, have fresh charters been granted greatly modifying and altering the original laws, and even the Civil Government, introducing either a constitutional or modified trial by Jury, and abolishing most of the previous Foreign Courts. Such is the charter, which for the purposes of administering justice with in their territories, consolidated British Guiana, Trinidad and St. Lucia, of June 1831. The charter of May 1832 for the Cape and that of February 1833 for Ceylon. There has been also a charter for the Mauritius, but that has The case of Ireland is perhaps more completely in point with this country than any substance. Now if I have shewn that whilst introduced comparatively little alteration in other part of the King's present dominions. the birth-right" of the English laws is uni It was partly conquered by the King's troops versally admitted in theory to be the right of and paitly acquired by treaty with, and from Englishmen, a principle laid down by the the dissensions of, its native Princes. We see then that there the Kings of England, when most eminent writers, sanctioned by the first they had conquered the country and settled legal authorities, and confirmed by legal decisions--when I shew, moreover, that it their own subjects in it, again and again protected them in the enjoyment of their birth-was the course adopted in the most important right." In the American colonies, almost all and one of the earliest of our conquests; that in the case of our North American colonies acquired by conquest and driving out the nawhich we lost, and in 24 out of 30 colonies tives, or the original European settlers, the which we now retain, the privilege of the same thing took place. No sooner did they become the abode of Englishmen than the would seem little more remains than to fill up "birth-right" has been acted upon, it English laws, and English constitution, were the intermediate chasm. For this purpose, secured to them-mostly by letters patent or and to shew at the same time that though the commissions from the King. The laws and King cannot within the realm of England religion of Canada were to a certain extent govern by Proclamation, yet he can so govern preserved to them by capitulation and treaty, in a conquered colony, even to the imposition but the British laws, both civil and criminal, of taxes on a British-born subject, I will were introduced in 1763 by proclamatim, toge- cite the case of Cambell v. Hall from Cowper's ther with that essential part of them, the Reports. This was the case of the Island of Habeas Corpus, and Trial by Jury. In 1791 it Grenada, which was taken by the King of was by act of Parliament divided into the two England in open war from France, and yieldcoloines of Upper and Lower Canada and aed by capitulation in February 1762, and was representative Government given to each province.

same

formally ceded by the treaty of Paris, Feb. 1763. The capitulation provided that they should be governed by their laws till his Majesty's pleasure should be known. That as by the surrender they would become subjects, they should enjoy their properties, and have the same privileges as his Majesty's other subjects of the British Leeward Islands. The Roman Catholic religion was preserved to them as far as the laws of Great Britain permitted, and such of the inhabitants as chose to quit the Island were allowed 18 months to dispose of their effects.

Without attempting minuteness in describ. ing the present Colonies of England or their respective Governments, it will be sufficient to say that they now are about 30 in number, exclusive of the military establishments of Gibraltar, Malta and Heligoland, and the East India Company's possessions. Out of these I believe 24 either govern themselves by means of assemblies (the most usual, the most constitutional, and the best mode of conferring on Englishmen their own laws, and their own freedom) which are generally By a Proclamation under the Great seal, 7th bound to pass "no laws that are repugnant October 1763, the King published and declarto the laws of England," or "to make laws ed that he had by letters patent given express as near as may be consonant to the laws of power and direction to the Governor of that England," or are governed by the British colony (amongst others) to summon and call, Parliament. The latter are 3 in number, so soon as the state and circumstances of the Newfoundland, New South Wales and Van colony would admit, general assemblies as Dieman's Land. The six which are partially used in the Colonies and Provinces of America subject to Foreign laws are British Guiana, under his immediate Government, and had (three former Dutch Colonies) Trinidad, St. given power to the Governors with the conLucia, the Isle of France, the Cape of Good sent of the Council and the representatives of Hope and Ceylon; every one of which by the people to be summoned as aforesaid, to their articles of capitulation (unless my me- make, constitute and ordain laws, statutes and mory deceives me) stipulated for this (for such ordinances for the Government of the colony it was to them, Dutch, Spaniards and French) and inhabitants "as near as may be agreeable to immunity. The treaty of Vienna, I think also the laws of England," and under such regulaconfirmed the several capitulations to a certain tions and restrictions as were used in our other extent. But in each and every of these colonies colonies. This Proclamation was made under

a recital that it would greatly contribute to

"The 3d, that the articles of capitulation the speedy settlement of Grenada, that "our upon which the country is surrendered, and loving subjects should be informed of our the articles of peace by which it is ceded, are paternal care for the security of the liberties and sacred and inviolable according to their true properties of those who are and shall become intent and meaning." This requires no inhabitants thereof." Another Proclamation comment. reciting a survey and division of the Island into allotments and an invitation to purchasers on terms mentioned in the Proclamation, was published on 20th March 1764.

"The 4th, that the law and Legislative Goverment of every dominion, equally affects all persons and all property within the limits thereof; and is the rule of decision for all On the 9th April 1764 letters patent were questions which arise there. Whoever purgranted to General Melville, with power to chases, lives, or sues there, puts himself unsummon assemblies in the terms of the Pro-der the law of the place. An Englishman in clamation of October. On the 20th July 1764, Ireland, Minorca, the Isle of Man, or the letters patent were issued by the King, by plantations, has no privilege distinct from which it was declared that the King by virtue the natives. of his Prerogative had directed that from the But it must be observed that an EnglishSeptember following 4 per cent should be collected on all commodities, the growth of man in Ireland, and in the plantations, had at the Island shipped from it, in lieu of all cus-that time his own laws, his own constitution. toms and duties theretofore collected under That the laws of the Isle of Man are founded the authority of the French King. on the same principles as those of England, Two points arose, 1st whether if the letters is an ancient fief of the kingdom, or was and differ chiefly in outward form, and that it patent of July 1764 had been made before the claimed as such by the Kings of England. Proclamation of October 1763, the King could As to Minorca, its own laws were secured to exercise such a legislative power over a conquered it by the articles of capitulation, which the

of it.

These points were argued four times in the Court of King's Bench.

Whilst as to

country. preceding resolution declares to be inviola2nd. Whether if he had such power he ble. But this resolution does not determine could exercise it after the Proclamation of that as to many things the privileges of differOctober 1763 or had thereby divested himself ent classes of subjects (not clashing with each other) may not be preserved to each. In Gibraltar, for 18 years and upwards after its first conquest, the Spaniards, Several propositions were stated by Lord Genoese and Dutch, were each governed by Mansfield in delivering the Judgment of the their own Consul, their own laws and their Court of King's Bench, and I will give them own lawyers, (subject, however, to the martial to you because they bear greatly upon both law of an English garrison) and I shall preyour points of accusation, and as you may sently shew that in this country of India for think some of them in your favor, I will give 110 years the British laws have prevailed (nearly them without any garbling, or keeping back, 50 of which they were administered by the so as to suit only my own argument: but for Company) in Calcutta, Madras and Bombay, the use of a gentleman who cannot keep in the latter having been part and parcel, or at view the difference between the prerogative least held in socage, of the manor of Greenwich of the Crown and the natural rights of the for nearly a century longer. people, the liability of the conquered and the British subjects their own laws have prevailed just claims of the natural born subjects of for an equal length of time. It is indisputsince 1773, (I think equally the conqueror, I shall take the liberty of able that that since 1726,) the British laws, adding a few comments, shewing what these so civil and criminal (such as have with a propositions do not determine. "1st. A country conquered by the British time in England) have been extended as to few exceptions prevailed during the same arms becomes a dominion of the King in right British subjects to every part of what the of his Crown; and therefore necessarily subCompay term "their territories"-from the ject to the legislature, the Parliament of northern-most point of them to Cape Comorin, Great Britain." This does not determine that from Dacca to Bombay. During the same time the King before the interference of Parliathe Mahommedans (the former conquerors) ment, and before he has parted with the right have held and enjoyed their laws, and the of legislating for the conquered country, may Hindoos (the ever conquered) theirs. I know not exercise that right by mere virtue of his of no evil which has ever arisen from this. prerogative by proclamation-which it was I know of no complaint which Hindoo or determined in this case he could exercise. Mahommedan ever made of this. The rights "The 2d is, that the conquered inhabitants of none have ever clashed with those of the once received under the King's protection, other. become subjects, and are to be universally

considered in that light, not as enemies or "The 5th, that the laws of a conquered aliens." But not British born subjects, who country continue in force, until they are alhave any privilege by "birth-right." They tered by the conqueror: the absurd exception are the ante-nati whose privileges differ much as to Pagans, mentioned in Calvin's case, from those of the post-nati. See the distinc-shews the universality and antiquity of the maxim. For that distinction could not exist tion, AMICUS, in Calvin's case.