Puslapio vaizdai

fore as he did make laws for Wales without assent of parliament, the clear consequence is that he governed it as a conquest: which was his title in fact, and the feudal right was but a fiction.

Berwick, after the conquest of it, was governed by charters from the crown, till the reign of James I., without interposition of parliament.

Whatever changes were made in the laws of Gascony, Guyenne, and Calais must have been under the King's authority; if by act of parliament. that act would be extant, for they were conquered in the reign of King Edward III.; and all the acts from that reign to the present time are extant; and in some acts of parliament there are commercial regulations relative to each of the conquests which I have named; none making any change in their constitution and laws, and particularly with regard to Calais, which is alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitution: for the inhabitants were summoned by writ to send burgesses to the English parliament; and, as this was not by act of parliament, it must have been by the sole act of the King.

Besides the garrison there are inhabitants, property, and trade at Gibraltar; the King, ever since that conquest, has from time to time made orders and regulations suitable to the condition of those who live, trade, or enjoy property in a garrison town.

Mr. Attorney-General has alluded to a variety of instances, several within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have been for years back a great many inhabitants of worth and a great trade carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily follow a conquest by the King of England) the same argument applies here; for before the 7th of October, 1763, the constitution of Grenada continued, and the King stood in the place of their former sovereign.

After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles II. changed its constitution and poli tical form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent.

It is not to be wondered that an adjudged case in point is not to be found; no dispute ever was started before upon the King's legislative right over a conquest; it never was denied in a court of law or equity in Westminster-hall, never was questioned in parliament. Lord Coke's report of the arguments and resolutions of the judges in Calvin's case lays it down as clear (and that strange extrajudicial opinion, as to a conquest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that "if a King”—I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly exploded "If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom; but, until he doth make an alteration of those laws the ancient laws of that kingdom remain; but if a King hath a kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament." It is plain that he speaks of his own country where there is a parliament. Also, "if a King hath a kingdom by conquest, as King Henry the Second had Ireland, after King john had given to them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England.

Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting officially in a public charge or in private, are not proper1 authority on which to found a decision, yet I cite them;-not to esta

lish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it has received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and conformable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg, what was to be done if they should persist in this refusal. Their answer is—“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 upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occasions, traced the constitution of Jamaica as far as there are books or papers in the offices; I cannot find that any Spaniard remained upon the island so late as the Restoration; if any, they were very few. A gentleman to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names among the white inhabitants of Jamaica; but there were amongst the negroes. The King, I mean Charles the Second, after the Restoration invited settlers by proclamation, promising them his protection. He made grants of land. He appointed at first a governor and council only; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner; not by the grants, but by commissions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown; like the cases of the islands of St. Helena and St. John, mentioned by Mr. Attorney-General.

A maxim of constitutional law, as declared by all the judges in Calvin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise made it doubtful; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited; no instance is to be found in any period of our history where it was ever questioned.


The counsel for the plaintiff undoubtedly labored this point from a diffidence of what might be our opinion on the second question. upon the second point, after full consideration, we are of opinion that before the letters patent of the 20th of July, 1764, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada.

The first and material instrument is the proclamation of the 7th of October, 1763. See what it is that the King there says, and with what view he says it; how and to what he engages himself and pledges his word: "Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof; we have thought fit to publish and declare by this our proclamation, that we have in the 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 thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies" (and then follow the directions for that purpose). And to what end? "To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies," of which this Grenada is one, "and of the people and inhabitants thereof, as near as may be agreeable to the laws of England." With what view is

the promise given? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assurred them of the constitution under which they were to live.

The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April, 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should admit.—You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called: the promise imports the contrary; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice; not an interposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called; it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly.

We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island. of Grenada-in general to all whom might concern-that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King.

Therefore, though the right of the King to have levied taxes on a conquered country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the findng of the verdict, paid in Barbadoes and all the other Leeward islands; jet by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is Iverted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only now be done, to use the words of Sir Philip Yorke and Sir Clement Wearg, "by the assembly of the island, or by an act of the Parliament of Great Britain."

The consequence is, judgment must be given for the plaintiff.



[Trans. Wright, Cavendish's Debates on the Canada Bill (London, 1839].

Lord North. The honourable gentleman next demands of us, will you extend into those countries the free exercise of the Romish religion? Upon my word, Sir, I do not see that this bill extends it further than the ancient limits of Canada; but if it should do so, the country to which it is extended is the habitation of bears and beavers; and all these regulations, which only tend to protect the trader, as far as they can protect him, undoubtedly cannot be considered oppressive to any of the inhabitants in that part of the world; who are very few, except about the coast, and at present in a very disorderly and ungovernable condition. The general purpose is undoubtedly to give a legislature to that country. It was very much, I believe, the desire of every person, if it were possible, to give it the best kind of legislature; but can a better legislature be given than that of a governor and council? The honourable gentleman dislikes the omitting the assembly; but the assembly cannot be granted, seeing that it must be composed of Canadian Roman Catholic subjects, otherwise it would be oppressive. The bulk of the inhabitants are Roman Catholics, and to subject them to an assembly composed of a few British subjects would be a great hardship. Being, therefore, under the necessity of not appointing an assembly, this is the only legislature you can give the Canadians, and it is the one under which they live at present. The governor and council really have been the legislature there ever since our conquest of it, and it is now put under some regulation. Hitherto, France has conducted the business-that is all the difference; if we do nothing, it must remain in the hands of the governor and council. The question is, whether, so regulated, this is not better. All the other colonies have been governed by a governor and council; it is not, therefore, so totally anomalous. The honourable gentleman objects to the want of a quorum. It is only giving full notice to all whose duty it is to attend, and when they do attend, things are to be decided by the majority, as in all other assemblies.

Now, Sir, with regard to giving French law-if gentlemen will remember, the most material part of the criminal law is to be according to English law. The civil law of Canada certainly is to be the French law; but, Sir, I understand the establishing of these laws to be given as the basis upon which the governor and legislative council are to set out. Sir, you would not send the governor and council to choose their own constitution to choose their own laws entirely. You must tell them from what laws they are to take their departure. It has been thought better calculated to secure the happiness of Canadians, and more beneficial for all who live in the country, that they should have the civil law of Canada, and not that of England. If the Canadian civil law is incompatible with the present condition and wishes of the colony, the governor and council will have power to alter it. But there must be a general basis; there must be a law established, ready to be amended and altered as occasions shall

1 The Quebec Act was introduced in the House of Lords on May 2, 1774, by Lord Dartmouth, President of the Board of Trade and Plantations. It passed without opposition on May 17. In the House of Commons it was debated from May 26 to June 13. During these debates several witnesses were examined, including Carleton, Chief Justice Hey and Maseres, and some minor amendments were made.

The debate in the House of Commons was begun by Thomas Townshend (afterwards Viscount Sydney), who accused the Government of lukewarmness and delay in relation to Canadian affairs. Lord North defended the measure through all its stages until it passed the House of Commons on June 13 by a majority of twenty-six in a house of seventy-six. It was finally passed in the House of Lords on June 16, by a majority of nineteen in a house of thirty-three, and received the Royal assent June 22. Lord Chatham opposed the bill in a violent speech, of which only an outline has been preserved. (See Chatham's Correspondence, ÏV, pp. 351 ff.)



The Coutume de Paris codified in 1510 and introduced into Canada in 1664. detailed report on the civil law in force in French Canada was drawn up at Carleton's request and published in London in 1772.

arise, and as the circumstances of the colony shall require. It has been the opinion of very many able lawyers, that the best way to establish the happiness of the inhabitants is to give them their own laws, as far as relates to their own possessions. Their possessions were marked out to them at the time of the treaty; to give them those possessions without giving them laws to maintain those possessions, would not be very wise. The French law may be worse than the English, but the particular portions for which we have the highest value ourselves, are a part of our political law, and a part of our criminal law. These may be acted on in Canada, seeing that the criminal law has been submitted to for nine years, and is, I dare say, approved of by the Canadians, because it is a more refined and a more merciful law than the law of France.

As to the free exercise of their religion, it likewise is no more than what is confirmed to them by the treaty, as far as the laws of Great Britain can confirm it. Now, there is no doubt that the laws of Great Britain do permit the very full and free exercise of any religion, different from that of the church of England, in any of the colonies. Our penal laws do not extend to the colonies; therefore, I apprehend, that we ought not to extend them to Canada. Whether it is convenient to continue or to abolish the bishop's jurisdiction, is another question. I cannot conceive that his presence is essential to the free exercise of religion; but I am sure that no bishop will be there under papal authority, because he will see that Great Britain will not permit any papal authority whatever in the country. It is expressly forbidden in the Act of Supremacy.

I dare say, Sir, I have not given an answer to many of the questions put to me by the honourable gentleman; nor do I recollect whether I have explained what I take to be the purpose of the present bill. It certainly gives to the Canadians many of their laws and customs; which laws and customs can be safely given to them. If alteration in those laws and customs should be deemed necessary, there is a legislature established, which will be ready to make those alterations. In a general plan of government, it is not possible to enter into a detail of what is proper, or what is improper, in Canada: it must be left to the legislature on the spot to consider all their wants and difficulties. The present bill will give laws, the principal laws, from which the legislature ought to take their departure-criminal law, civil law, political law. That is the purpose of the bill. It has appeared to be the best plan that could at present be devised; and it requires and deserves the immediate attention of the House. The honourable gentleman asks, why, before it was introduced into the House of Lords immediately after Easter, full notice was not given, that it would come down here? Sir, we are not to blame for the omission: there is, however, abundance of time to go through the bill, to correct, to approve, or to amend it. His Majesty's message recommended Parliament to take up the subject: and as soon as it was in a fit state to be laid before the other House, I am confident the noble lord brought it forward.

Sir, the honourable gentleman proposes to limit the bill in point of time. That will be a proposition for the committee to consider: it is not now proper to be entertained. If you mean to have the bill exist even but for a year, you will read it now a second time. The question of duration is a question that will come on hereafter; it is not a proper one for the present moment. I own I shall not be for a limitation, and I shall be ready to submit my reasons; but if the committee should think proper to alter it, I must acquiesce, rather than leave the Canadians without any legislature at all. Better far to give them some legislature, than leave them for three or four years in their present situation.

The honourable gentleman put a question to me concerning a revocation of the judges' commissions. Certainly, there can be no intention to remove any of those officers who are now there. It is a happy circumstance for this country, that gentlemen of their merit should have been willing to go and establish themselves there. It is a happy circumstance for the Canadians, that they are there established: but as the form of the courts of justice is not agreeable to the practice in England, it must be altered;

« AnkstesnisTęsti »