more.

Leeward Islands.

before the Christian æra; and in all probabi- | from the laws of trade, or from the power of lity arose from the mad enthusiasm of the Parliament, or give him privileges exclusive Croisades. In the present case (Grenada) the of his other subjects; and so in many other capitulation expressly provides and agrees, instances which might be put." But if he that they shall continue to be governed by gives their own laws of marriage, inheritance their own laws, until his Majesty's further and contract to the conquered people he may pleasure be known." also give their own in similar cases to his sub"But the present At the time this judgment was delivered jects. It goes on to say. the Company's large infidel acquisitions had change, if it had been made before the 7th been a subject of much discussion and oppo-October, 1763, would have been made recentsite claim between the King and Company in ly after the cession of Grenada, by treaty, Parliament. The value of an infidel country and is in itself most reasonable, equitable, in which it was thought dangerous to alter and political; for it is putting Grenada, as to their laws, might not be without its weight duties, on the same footing with all the Briin the decision, or rather in the utterance of tish Leeward Islands. If Grenada paid more this obiter dictum, for it is after all nothing it would have been detrimental to her; if On the other hand go to the principles less, it must be detrimental to the other Leeof a Christian Government, and a Christian ward Islands: nay, it would have been carryKing, and kingdom. If Christianity is parting the capitulation into execution, which and parcel of the English law and constitu- gave the people of Grenada hopes, that if any tion, though it may tolerate the exercise of new tax was laid on, their case would be the any religion, so long as it is practised inoffen- same with their fellow-subjects in the other sively, can it, ought it, lucri causâ, to recognize laws contrary to its principles, opposed to its "The only question then on the first point propagation, and inimical to its founder? is, whether the King had a power to make What a commercial country, placing a por-such change between the 10th of February, tion of its interests under the management of 1763, the day of the treaty of peace was a Company of adventurers, may choose to signed, and the 7th October 1763? Taking concede or submit to-what the auri sacra these propositions to be true which I have fames may induce them to swallow, I do not stated; the only question is, whether the know-but it is quite clear, according to the King had of himself that power? It is left principles by which India has been won and by the constitution to the King's authority to held, that idolatry, that a numberless plurali- grant or refuse a capitulation: if he refuses, ty of deities, that Juggernauth's car and its and puts the inhabitants to the sword, or human sacrifies, to say nothing of alleged exterminates them, all the lands belong to him. human sacrifices elsewhere, even as it is said, If he receives the inhabitants under his protection in Hindoo temples within 3 miles of the and grants them their property, he has a power Governor-General's Palace, can all be swal- to fix such terms and conditions as he thinks lowed and digested by the East India Com- proper. He is intrusted with making the pany if sufficiently gilt. Mind I give no treaty of peace: he may yield up the conopinion on the expediency of thus conceding, quest, or retain it upon what terms he pleases. and I am decidedly in favor of universal These powers no man ever disputed," (this toleration; but I am contented to go back was reserved for a flourish of AMICUS CURIE) to a period much within that of the esta"neither has it hitherto been controverted blishment of Christianity for the founda- that the King might change part or the whole tion of the British Constitution, and I main- of the law or political form of Government tain fearlessly (even against the authority of a conquered dominion." This is putting of Lord Mansfield and the Court of King's it on precisely the same grounds as the case Bench) by the side of Sir Edward Coke, that his exception in Calvin's case of the laws of an infidel country, is more consonant with the mild, pure, and unselfish doctrines of the Christian religion, more suited to the moral dignity of a country that makes Christianity a part of the law of the land, than the seeking after any advantages of wealth or power at the sacrifice of principles which we are taught to believe are of essential importance to our eternal welfare.

"The 6th, and last proposition is, that if the King," and when I say the King, (Lord Mansfield loquitur) I always mean the King, without the concurrence of Parliament," has a power to alter the old and to introduce new laws in a conquered country; this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles: he cannot exempt an inhabitant from the particular dominion: as for instance,

in Peere Williams-the right to deal with the conquered as he pleases, from the mercy and protection he extends towards them. This can give him no right to deal capriciously with his own subjects and to deprive them of a "birth-right.”

Lord Mansfield then goes into the history of the conquests made by the Crown of England.

"The conquest and the alteration of the laws of Ireland have been variously and learnedly discussed by lawyers of great fame, at different periods of time: but no man ever said, that the change in the laws of that country was made by the Parliament of England: no man ever said the Crown could not do it. The fact in truth, after all the researches which have been made, comes out clearly to be, as it is laid down by Lord Chief Justice Vaugham, that Ireland received the laws of England, by the charters and commands of Henry 2, King John, Henry 3, and he adds an etcetera to

take in Edward 1, and the subsequent Kings. J in Parliament. Coke's report of the arguAnd he shews clearly the mistake of imagin-ments and resolutions of the judges in Caling that the charters of the 12th of John, were vin's cases, lays it down as clear. If a King by the assent of a Parliament of Ireland. (says the book) comes to a kingdom by conWhenever the first Parliament was called in quest, he may change and alter the laws of Ireland, that change was introduced without that kingdom; but if he comes to it by title the interposition of the Parliament of Eng-and descent, he cannot change the laws of land; and must therefore be derived from the himself without the consent of Parliament. Crown. It is plain he alludes to his own country, because he alludes to a country where there is a Parliament.

say

"Mr. Barrington is well warranted in ing that the statute of Wales, 12th Ed. 1st, is certainly no more than regulations made by "The authority also of two great names the King in his council, for the government of has been cited, who take the proposition for Wales, which the preamble says was then granted. In the year 1722, the assembly of totally subdued. Though, for various poli- Jamaica being refractory, it was referred to tical purposes he feigned Wales to be a feoff Sir Phillip Yorke and Sir Clement Wearge, of his Crown; yet he governed it as a con- to know what could be done if the assembly quest. For Edward 1st never pretended that he should obstinately continue to withhold all could, without the assent of Parliament, make laws to bind any part of the realm. "Berwick, after the conquest of it, was governed by Charters from the Crown without the interposition of Parliament, till the reign

of James 1st.

66

the usual supplies." They reported thus: If Jamaica was still to be considered as a conquered Island the King had a right to levy taxes upon the inhabitants; but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants but by an assembly of the island, or by an Act of Parliament."

All the alterations in the laws of Gascony, Guienne, and Calais, must have been under the King's authority; because all the "They considered the distinction in law as Acts of Parliament relative to them are extant. clear, and an indisputable consequence of For they were conquered in the reign of the island being in the one state or in the Edward 3d, (this is a mistake of Lord Mans- other. Whether it remained a conquest, or field as to Gascony and Guienne which came was made a colony, they did not examine. I to Henry the 2d by his marriage,) and all the have upon former occasions traced the constiActs of Parliament of that time are extant. tution of Jamaica, as far as there are papers There are some Acts of Parliament relative and records in the offices, and cannot find that to each of those conquests that I have named, but none for any change of their laws, and particularly with regard to Calais, which is alluded to as if their laws were considered as given by the Crown.

66

no

any Spaniards remained upon the island so late as the restoration; if any, there were very few. To a question I lately put to a person well informed and acquainted with the country, his answer was, there were there were among the negroes. King Charles Spanish names among the white inhabitants, 2d by proclamation invited settlers there: he made grants of lands: he appointed at first a governor and council only, afterwards he granted a commission to the governor to call an assembly.

Besides the garrison, there are inhabitants, property, and trade in Gibraltar: ever since that conquest the King has made orders and regulations suitable to those who live, &c. or trade, or enjoy property in a garrison town. "The Attorney-General alluded to a variety of instances, and several very lately, in which "The constitution of every province, imthe King had exercised legislation in Minorca: mediately under the King, has arisen in the in that country there are many inhabitants, same manner; not from grants but from commuch property, and trade. If it is said that missions to call assemblies: and therefore all the King does it as coming in the place of the the Spaniards having left the island or been King of Spain, because their old constitution driven out, Jamaica from the first settling remains, the same argument holds here. For was a colony of English, who under the before the 7th October, 1763, the original con-authority of the King planted a vacant isstitution of Grenada continued and the King land, belonging to him in right of his crown ; stood in place of their former sovereign.

"After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles 2d, changed the form of their constitution and political Government, by granting it to the Duke of York, to hold of his crown, under all the regulations contained in the letters patent.

"It is not to be wondered at that an adjudged case in point has not been produced. No question was ever started before but that the King has a right to a legislative authority over a conquered country, it was never denied in Westminster Hall; it never was questioned

like the cases of the island of St. Helena and St. John, mentioned by Mr. Attorney General.

"A maxim of constitutional law as declar

ed by all the judges in Calvin's case, and which two such men in modern times as Sir Phillip Yorke and Sir Clement Wearge, took for granted, will require some authorities to shake." A better authority than that of AMICUS

CURIE.

The rest of the Judgement merely refers to the facts of that particular case. The decision was, that though the abolishing the du ties of the French King and the substituting that Tax in its stead, is just and equitable with respect to Grenada itself, and the other

British Leeward Islands, yet, through the in- by Proclamation has a power to impose taxes attention of the King's servants, in inverting not merely on the inhabitants, but even on the order in which the instruments should a native-born subject. A fortiori I suppose have passed, and been notoriously published, he may make other Laws which do not impose the last act is contradictory to, and a violation taxes. You will please to observe that I said of the first, and is therefore void. that a proclamation was the least by which the I will conclude the History of English Con-" birth-right" can be affected. I repeat it, if quests by the cases of the three military esta- the king, or those in authority under him, had blishments in Europe, of Gibraltar, Malta, issued a proclamation maintaining the laws and Heligoland. The two latter have never of the conquered country, as in the Isle of been peopled by the British, and therefore France they did, as I will presently shew you, are not in point; Gibraltar I have already that might or might not have altered those partially mentioned: it was conquered in the laws which it is the birth-right of British year 1704. In 1722 the English inhabitants subjects to take with them. Had there been petitioned for a charter and for a Mayor, Alder- a previous capitulation stipulating that such men and common council. It was thought that should be the case, the British subject must this was unsuited to a free port, in which there have held that sacred and inviolable. If not were but few resident inhabitants-at that I say that his birth-right would have remaintime only 200 British inhabitants besides the ed and by a just Government must have been garrison. But they obtained an English admitted and protected: but I do not, and,— Judge appointed by the Crown, and two mer- notwithstanding the nausea created in your chants to constitute the court. You may see stomach at the mention of the word Proclathe full account and report of the Attorney and nation,--I will not, contend that the ProclaSolicitor General in Chalmer's opinions which mation whilst it continued in operation would I have already mentioned. Altogether there not effectually alter the Law which the Briwere three charters before 1817, when the old tis subject was entitled to carry with him, and charters were recalled, and a court esta- so far interfere for a time, or permanently in blished by the name of the court of Civil case of a capitulation, with his birth-right. Pleas, to consist of one person learned in the A charter from the King, a commission to a Laws of England who with two inhabitants, to governor, or an act of Parliament are other be appointed by him, was to determine all modes by which it can be done. And observe suits," according as nearly as might be to the I do not say there are any natural rights to laws of England. The criminal law of which a British subject is entitled, especially England was to be administerted with the in the East Indies, which may not be trampassistance of a jury. In September, 1830, led upon. We have seen that such is the a fresh charter issued with the same pro- case even in Ireland. You were probably vision as to the English law, giving a thinking of the attempt by the House of Stuart Jury of 12 in criminal and 3 assessors in civil to give to Proclamations the force of Laws, cases. I think we are now in possession of which a British Parliament were base enough sufficient facts, and authority, and precedent, to enact in the reign of Henry the 8th, and to come to a correct decision if we can ap- which was afterwards repealed in the reign ply them. I gather from all these authorities of his infant son. It is clear that the sole and cases that although it is certainly true legislative authority in Great Britain is vestthat in a ceded or conquered colony the pre-ed in Parliament-but it is no less clear that existing Laws, unless altered by the con- in conquered colonies the sole legislative power, queror, will continue, and that the conquered unless Parliament think proper to interfere, have no just cause of complaint whatever is in the King alone who usually exercises Laws he may impose upon them, yet that he it by Proclamation, and this is the substance may at any time alter those laws if not con- of your accusation against me No. 2. trouled by treaty or the articles of capitulation, and that "it is the right and privilege I now proceed to your historical cases. of British subjects in a conquered colony, or You say English Lawyers to whom I have province, to carry with them their own laws been obliged to quote Blackstone cannot take till duly altered by competent authority." it amiss if I remind them of a few passages That this right and privilege is a "birth- of the history of England." No doubt,-but right" "founded upon the law of nature or what passage of English history have you at least of nations," and that it cannot reminded us of? You certainly must have be neglected or violated, without good politi- studied less of history (whatever you may cal cause, whenever the colony becoming the have done of law) than Pantagruel's mule (to general resort of British subjects, their whom you are probably related on the father birth-right" to carry with them their Laws, or mother side,) or you would not have put comes into operation. And this I think forms the three cases of Guernsey, Jersey and Cathe subject of your accusation and mistake lais. They never were colonies, nor was any No. 1. Next I learn from an actual decision of them a colony of England. As you seem of the Court of King's Bench, founded upon to have entirely forgotten it, if you ever knew an examination of the oldest authorities, that your English history, let me remind you of although no man can be compelled in Eng- some passages in it. Henry 2nd succeeded to land to pay one penny that is not imposed Anjou, Loraine, Normandy and Maine in by Parliament, yet that in a conquered colony right of his father Geoffry and his mother the King alone, by virtue of his prerogative,' Matilda.

"The dukedom of Acquitain," says Sir respect of Calais, Guernsey and Jersey, Edward Coke, in Calvin's case, "whereof though nothing to the purpose of your accuGascoigne was parcel, and the earldom of sation, is to have procured for you some inPoitiers, came to King Henry the second by formation of which you were evidently before the marriage of Eleanor, daughter and heir destitute, and which it is to be hoped will of William the duke of Acquitain, and earl of enable you for the future to browze with a Poitiers, which descended to Rich. 1., Hen. greater degree of personal dignity in com3., Dd. 1., Ed. 2., Ed. 3. pany with Pantagruel's mule than you could have ventured heretofore to indulge in. You are hardly much more correct in your wanderings to the Cape, the Isle of France, and Ceylon. To take them in the order in which you give them. The Isle of France is not under French law-but under four out of five of the codes de Napoleon-and in criminal cases subject to the criminal law of the French monarchy before the Revolution. The island capitulated 3d December, 1810. By the capitulation it was stipulated that the property of the inhabitants should be respected, and that they should preserve their religion, their laws and customs. By a Proclamation, 5th December, 1810, it was declared that the rules hitherto observed for the administration of Civil Justice and Police, should be preserved, and that the laws and usages in force up to that day should also be continued. So much for your assertion that in none of these places was there any proclamation issued re-establishing the law. There was at least a proclamation and an "inviolable" capitulation, continuing the law,-altering therefore the laws which previously were the "birth-right" of British subjects, and I believe that at the Cape, that is my recollection, there was a similar capitulation and a similar proclamation; also at Ceylon in the Maritime provinces, but that was a little before my political memory commences. The latter, however, was acquired by, and first annexed to, Madras. In the Candian Provinces there was a regular agree

"Guienne was another part of Acquitain, and came by the same title to King Henry the second, namely, by marriage, and continued in the actual possession of the Kings of England by ten descents, viz. from the first year of King Henry the second, unto the two and thirtieth year of King Henry the sixth, which was upon the very point of three hundred years. King William the first brought the dukedom of Normandy with him, which by five descents continued under the actual obedience of the Kings of England, and in or about the 6th year of King John, the crown of England lost the actual possession thereof, until King Henry the fifth recovered it again and left it to King Henry the sixth, who lost it in the 28th year of his reign." Let me here remind you that, as part of the Duchy of Normandy the Kings of England have held Guernsey, Jersey, Sark and Alderney. They never were ceded or conquered colonies, and possession of them has never been lost. "Calais, Guynes, and Tournay, descended to King Edward the third as son and heir to Isabel, daughter and heir to Philip le Beau, King of France." Such at least was the claim of the Kings of England in opposition to the Salique Law of France. He proceeds:

"Calais is a part of the kingdom of France, and never was parcel of the kingdom of England, and the King of England enjoyed Calais in and from the reign of King Edward the third, until the loss thereof in Queen Mary's time by the same title that they had to France."

is also something like a legislative Council: corpus may be issued at Ceylon where there not the mockery which we have here. What Roman Dutch law gives the privilege of habeas corpus?

ment entered into between the Governor, General Brownrigg, and the Candian Chiefs, and But, Sir, supposing that Calais was a conquered colony, it is just the place of all lected that in all these Colonies their original a subsequent proclamation. But be it recolothers which would be inapplicable for the laws have been greatly affected by the late purpose you mention it. The French law ne- Charter of May 1832, and February 1833, and ver did prevail at Calais whilst the English that whilst British judges born and bred,— possessed it. Edward the 3d on taking it, administer the laws with the assistance of turned out all the French inhabitants, and Juries and assessors, the writ of habeas peopled it with English. He gave it a charter. He made it the emporium of the great staples of England, which the English merchants sold there to foreign merchants. As to Guernsey and Jersey, they are not now under Norman French law, though that is the foundation of their chief laws, but the feudal system Let me now see how far I was correct and other institutions were almost abolished in advancing that this right and privilege by a charter of King John (at least in Guern--this "birth-right" was not, in India, a sey) which established a Court consisting of mere ideal, theoretical privilege, but one 12 Jurats; and in both the islands, indeed in which had been enjoyed here by British suball four, they have in addition to, and as va-jects long before the Charter of George 2d. rying, Le Grand Coutumier and La Somme de In 1726 (13th Geo. 1.) a Charter was grant Mançel, ordinances by the Kings of England, ed to the Company, enabling them to establish or by commissioners royal, orders in Coun- a corporation at each of the presidencies, concil, and some acts of Parliament in which the sisting of a Mayor and nine Aldermen, of islands are named. Each Island, also has its whom seven were to be natural-born British assembly, through whom, with the assent of the subjects. Before this time the Governor and King, the taxes are imposed, with very much Council of the several places belonging to of the power of the British Parliament. The the Company had possessed certain jurisdicresult, therefore, as to your enquiries in 'tion in civil and criminal matters over persons

Still as the Company's territories encreased, and with these the corruption, peculation, and tyranny of their servants, who were under little or no controul, (so said the Company in 1772) these Courts were found inadequate to the protection either of the Company themselves or their subjects, and it was thought necessary to make a general alteration in the judicial system of India, and

living in the Company's factories, under suc- | Mayor and Aldermen of Calcutta, nominated cessive Charters granted by the Crown. By by the Governor and Council, to whom lay letters patent of Charles 2d in 1661, it was the appeal, and whose decision was final in granted that all plantations, forts, fortifica- matters not exceeding 1,000 pagodas. tions, factories, or colonies should be under! the power and command of the Governor and Company; and that the Governor and his Council of the several factories and places of trade might have power to judge all persons belonging to the said Governor and Company, or that should live under them in all cases, whether civil or criminal, according to the laws of the kingdom of England. Under a subsequent Charter of either James especially of Bengal. 2d or William 3d, (I forget which) a civil court was afterwards established of one per-sures, one in 1772, the other in 1773, both of The Company brought forward two meason “learned in the civil laws" and two mer- which were lost. Lord North introduced a chants, all of whom were appointed by the third, which was carried, and under which the Company, but they were to administer justice Supreme Court of Calcutta was established. according to British laws.

It is deserving of observation that the grand struggle of the Court of Directors seems to have been the appointment of the judges; could they have secured to themselves this power, they appear to have entertained none of those apprehensions which their defeat on this point conjured up.

In 1773 the Company petitioned Parliament for another bill, proposing that the Directors should appoint a Barrister in each of the Mayor's Courts, and amongst other things that the Habeas Corpus should be extended to INDIA.

The inadequacy of such a Court led to the establishment on the petition of the Company of the Mayor's Courts, as mentioned above, under the charter of Geo. 1, and a second (occasioned by the loss and regaining of Madras) 26th Geo. 2. in 1753, in which the East India Company contrived to introduce some clauses favorable to their own power, namely, A bill was introduced by Mr. Sullivan, the the appointment and removal of the Aldermen. Deputy Chairman in 1772, which gave the Mr. Cornwall said on the 10th May, 1772, Company the appointment of the Judges, and that the old Charter answered all the purpose the opposition to their possessing such a very well, and Mr. Pulteney said in the same portion of regal prerogative, together with debate, in speaking of the old Mayor's Court their tenacity upon the point, occasioned the of 1726, that "it frequently gave sentence loss of the bill, by which it was proposed to against the Company, and this inflexibility appoint, in lieu of the Mayor and Aldermen was the reason that application was made to of Calcutta, four Judges, Barristers of EngParliament (in 1753) for the power of appeal to land, and to extend the authority of the Court the Governor in Council and for the power of to all Bengal-not merely to British-born, but making and unmaking the Aldermen: ever also to native subjects. This, bear in mind, since that period no absolute confidence was was proposed by the Court of Directors. to be placed in the Mayor's Court. Yet still the court of appeal has been the chief object of complaint, and with justice; for I find that there is hardly an instance of application to the King and Council from its determination where the Company has not been cast. Can a stronger proof than this be produced of its inequitous and arbitrary proceedings?" The Lord North's bill superseded this and that Mayor's Courts both under the Charter of gave the nomination of the Judges to the Geo. 1 and Geo. 2, exercised jurisdiction as Crown. Courts of Record in civil and ecclesiastical Almost the only opposition of the Commatters, within the respective towns of Cal-pany to this bill was on the score of such cutta, Madras and Bombay, and over all nomination. So little did they then think of British subjects living under the Company: danger arising from the introduction of and the Governor and five members of coun- British law, and British Judges into British cil were created justices of the peace and India, even amongst the natives, that they were empowered to hold quarter Sessions for proposed to introduce it into all their territothe trial of criminal offences, except high trea- ries in possession or expectancy; and so alive son. Under the Charter of 13 Geo. 1. were were they to the advantages of the Habeas generally introduced the Common and Sta- Corpus, that, on Lord North's bill being tute laws of England, and it never has been dis- carried in the Commons, they absolutely puted that all statutes previously passed not petitioned the House of Lords against the local in their operation are of force in India bill on the ground (inter alia) that the most as regards British subjects, and within the effectual provision of all others to prevent respective towns of Calcutta, Madras and oppressions, which was recommended by the Bombay as regards all the inhabitants, ex- Company, viz., that of the Habeas Corpus, cepting in as far as they may be affected and whereby men might know of what they were. restrained by express legislative enactment. accused and by whom imprisoned, was omitRecollect this was not an introduction of ted. This objection could only relate to English law by King's judges, but by the the native inhabitants, for the bill gave

с с