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But the present change, if it had been made before the 7th October, 1763, would have been made recently after the cession of Grenada by treaty, and is in itself most reasonable, equitable, and political; for it is putting Grenada, as to duties, on the same footing with all the British Leeward Islands. If Grenada paid more it would have been detrimental to her; if less, it must be detrimental to the other Leeward Islands : nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes, that if any new tax was laid on, their case would be the same with their fellow-subjects in the other Leeward Islands.
The only question then on this first point is, Whether the king had a power to make such change between the 10th of February, 1763, the day the treaty of peace was signed, and the 7th October, 1763? Taking these propositions to be true which I have stated, the only question is, Whether the king had of himself that power?
It is left by the Constitution to the king's authority to grant or refuse a capitulation : if he refuses, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection and grants them their property, he has a power to fix such terms and conditions as he thinks proper. He is intrusted with making the treaty of peace : he may yield up the conquest, or retain it upon what terins he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the king might change part or the whole of the law or political form of government of a conquered dominion.
To go 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 and writers 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 trutlı, after all the researches which have been made, comes out clearly to be, as it is laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England, by the charters and commands of Hen. 2, King John, Hen. 3, and he adds an et cætera to take in Ed. 1 and the subsequent kings. And he shows clearly the mistake of imagining that the charters of the 12th of John were by the assent of a Parliament of Ireland. Whenever the first Parliament was called in Ireland, that change was introduced without the interposition of the Parliament of England; and must, therefore, be derived from the Crown.
Mr. Barrington is well warranted in saying that the statute of Wales, 12th Ed. 1st, is certainly no more than regulations made by the king in his council, for the government of Wales, which the preamble says was then totally subdued. Though, for various political purposes, he feigned Wales to be a feoff of his crown; yet he governed it as a conquest. For Ed. 1st never pretended that he 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 Jac. 1st.
All the alterations in the laws of Gascony, Guienne, and Calais, must have been under the king's authority ; because all the Acts of Parliament relative to them are extant. For they were in the reign of Edward 3d, and all the Acts of Parliament of that time are extant. There are some Acts of Parliament relative to each of these 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.
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 king had exercised legislation in Minorca : there, there are many inhabitants, much property, and trade. If it is said that the king does it as coming in the place of the King of Spain, because their old constitution remains, the same argument holds here. For before the 7th October, 1763, the original Constitution of Grenada continued, and the king 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 letterspatent.
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 in Parliament. Coke's Report of the arguments and resolutions of the judges in Calvin's Case lays it down as clear. If a king (says the book) comes to a kingdom by conquest, he may change and alter the laws of that kingdom; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament. It is plain he alludes to his own country, because he alludes to a country where there is a parliament.
The authority also of two great names has been cited, who take the proposition for granted. In the year 1722, the Assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearge, to know " what could be done if the Assembly should obstinately continue to withhold all 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."
They considered the distinction in law as clear, and an indisputable consequence of the island being in the one state or in the other. Whether it remained a conquest, or was made a colony, they did not examine. I have upon former occasions traced the Constitution of Jamaica, as far as there are papers and records in the offices, and cannot find that any Spaniard 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 no Spanish names among the wbite inhabitants, there were among the negroes. King Charles 2d by proclamation invited settlers there, he made grants of lands: be 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 from grants, but from commissions to call assemblies : and, therefore, all the Spaniards having left the island or been driven out, 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 island 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 Wearge, took for granted, will require some authorities to shake.
But on the other side, no book, no saying, no opinion has been cited ; no instance in any period of history produced, where a doubt has been raised concerning it. The counsel for the plaintiff no doubt labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration we are of opinion, that before the letters-patent of the 20th July, 1764, the king had precluded himself from the exercise of a legislative authority over the island of Grenada.
The first and material instrument is the proclamation of the 7th October, 1763. See what it is that the king there says, with what view, and how he engages himself and pledges his word.
“For the better security of the liberty and property of those who are or shall become inhabitants of our island of Grenada, we have declared by this our proclamation, that we have commissioned our governor (as soon as the state and circumstances of the colony will admit) to call an assembly to enact laws,” &c. With what view is this made? It is to invite settlers and subjects: and why to invite. That they might think their properties, &c., more secure if the legislation was vested in an assembly, than under a governor and council only.
Next, having established the constitution, the proclamation of the 20th March, 1764, invites them to come in as purchasers : in further confirmation of all this, on the 9th April, 1764, three months before July, an actual commission is made out to the governor to call an
assembly as soon as the state of the island would admit thereof. You observe, there is no reservation in the proclamation of any legislature to be exercised by the king, or by the governor and council under his authority in any manner, until the assembly should meet; but rather the contrary: for whatever construction is to be put upon it, which, perhaps, may be very difficult through all the cases to which it may be applied, it alludes to a government by laws in being, and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict, any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assembly was called then or at any time afterwards, till the end of the year 1765.
We therefore think, that by the two proclamations and the commission to Governor Melville, the king had immediately and irrecoverably granted to all who were or should become inhabitants, or who had, or should acquire property in the island of Grenada, or more generally to all whom it 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 the other islands belonging to the king.
Therefore, though the abolishing the duties of the French king and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself, and the other British Leeward Islands, yet, through the inattention of the king's servants, in inverting the order in which the instruments should have passed, and been notoriously published, the last act is contradictory to, and a violation of the first, and is, therefore, void. How proper soever it may be in respect to the object of the letters-patent of the 20th July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, “ it can only now be done, 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.
WRITTEN CONSTITUTIONS IN THE UNITED STATES.
NOTE TO PAXTON'S CASE OF THE WRIT OF ASSISTANCE 1 (Quince's
Rep. 51). (1761.)
[Quincy's Rep., Appendir 1. 520.] But Otis, while he recognized the jurisdiction of Parliament over the Colonies, denied that it was the final arbiter of the justice and constitutionality of its own acts; and relying upon words of the greatest English lawyers, and putting out of sight the circumstances under which they were uttered, contended that the validity of statutes must be judged by the courts of justice; and thus foreshadowed the principle of American Constitutional Law, that it is the duty of the judiciary to declare unconstitutional statutes void.
His main reliance was the well-known statement of Lord Coke in Dr. Bonham's Case — “It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void; for where an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void.”2 Otis seems also to have
1 By Horace Gray, Jr., Esq., now Mr. Justice Gray, of the Supreme Court of the United States.
I am indebted to the publishers, Messrs. Little, Brown & Co., and to Josiah Quincy, Esq., of Boston, the owner of the copyright, for permission to reprint here this valuable note. Quincy's Reports were published in 1865. - Ep.
2 8 Rep. 118 a, quoted by Otis, ante [Quincy], 474. Dr. Bonham's Case (so far as is material to exhibit this point) was an action of false imprisonment, brought against the president and censors of the College of Physicians in London, for committing the plaintiff to jail for practising medicine in London without their license. The defendants justified, on the ground that it was granted in their charter, and since confirmed by Act of Parliament, that no one should practise medicine in London without license from them, under penalty of 100s. for each month, one half to the king, and one half to the college: and it was moreover granted that they should have the supervision of all physicians practising in London, and the punishment of them for malpractice, and the scrutiny of all medicines: “so that the punishment of the same physicians so delinquent in the premises might be by fine and imprisonment, and other suitable manner.” Coke, C. J., Warburton & Daniel, JJ., gave judgment for the plaintiff upon two points: Ist. That the defendants had no power to commit the plaintiff for the cause alleged. 2d. That if they had such power, they had not pursued it. 116 b, 117 a, 121 a. The 2d point need not be further noticed here.
Of the first point "the cause and reason shortly was” that the clanse giving the power to fine and imprison did not apply to those practising without liceuse, but only to those who were guilty of malpractice. “And that was made manisest by five reasons, which were called vividæ rationes, because they had their vigor and life from th letters-patent and the Act itself," " by construction, and conferring all the parts of them together.” 117 a. “And all these reasons were proved by two grounds or maxims in law: 1. Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa.” 118 b. “2. Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda 119 a.
The fourth of the reasons thus derived from the whole context, and supported by