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an assembly of the people ; and since the Duke of York did the same thing in the province of New-York for about eighteen years, by virtue of a delegation of the powers of government to him from the Crown by King Charles's letters. patent; and these two countries were not considered as conquests, but as plantations of Englishmen; it follows, à fortiori, that in countries that are not only conquered, but considered as conquered, the Crown may lawfully exercise the same authority." This would have been a tolerably plausible argu. ment, and much stronger than any of those which Lord Mansfield made use of in that judgment. But he did not make use of this argument; and indeed could not, consistently with the opinion he delivered concerning planted countries, or colonies : for in these he declared, that the king alone had not the power of making laws and imposing taxes, but the king and parliament conjointly, or the king and the assembly of the freeholders of the colony conjointly, agreeably to the opinion of Sir Philip Yorke and Sir Clement Wearg in the year 1722, concerning the island of Jamaica. He could not, therefore, make use of the foregoing argumeot à fortiori in favour of the king's sole legislative authority over conquered countries, which' is built upon the supposition of his Majesty's having had such an authority over planted countries, or colonies ; because he denied the existence of the latter authority, which is its foundation. According to Lord Mansfield's doctrine, therefore, of che king's not being the fole legislator of planted countries, the instances of New York and Jamaica cannot afford the above indirect argument à fortiori ia Support of the king's fole legislative authority over conquered counties. Nor can they afford a direct argument, independen:ly of the consideration of planted countries, in support of this authority; be. cause those places, or provinces (though really conquests) were confidered and treated as planted countries. And therefore they ough not to have been cited by Lord Mansfield as proofs of the said 20thority. -As to the opinion of such lawyers (if there are any such at this day) as would go further than Lord Mansfield in their notions of the king's legislative authority, and would say, that the king is the fole legiflator not only of all conquered countries, but of all planted countries in which he has not divested himself of bis authority by some charter or proclamation, I fall say nothing to it, but that I agree with Lord Mansfield in considering the opinion of such lawyers as erroneous with respect to planted countries, and that I am inclined to go beyond Lord Mansfield in thinking it likewise er. soncous with respect to conquered countries, or, at least, that the arguments adduced by his lordship in fupport of it in that latter case, are not suficient to elablish it.
• As to Gibraltar and Minorca, in which the king has made from, time to time some regulations by his orders in his privy council, we have observed, that the former of these places is really nothing more than a garrison-town, without an inch of ground belonging to it beyond the fortifications ; and that the latrer of them, though an illand of some extent, has always been considered by the people of England in nearly the same light, or as an appendage to the fortress of St. Philip's castle, which defends the har"our of Mahon ;-thas its civil government has been intirely Reglected by the minifiers of
ftate in Great Britain, ever Gince the conquest of it, and that no at tempt has been made to encourage the profession of the Protestant religion in it, or to introduce the English laws there, even upon criminal matters; and yet that the state of the laws, which are fupposed to take place there, is so uncertain and un determined, that (though the old Spanish laws are supposed to be in force, and most frequently appealed to) the inhabitants sometimes f lead the English laws. And from these circumstances of neglect, confusion, and un, certainty, and likewise from the small importance of the subjects upon which the kings of Great-Britain have exerciseid a legislative au. thority over these places by their orders in council (110 laws for creating new felonies or capital crimes, or for imposing: taxes on the inhabitants of those countries, or for any other very important purpose, having ever been made with respect to them) we concluded, that neither this island nor the town of Gibraltar were fit examples to prove Lord Mansfield's assertion concerning the sole legislative authority of the Crown over conquered coucitries.'
From the preceding extract, our Readers will conceive of this Author, that he is not one of those Aimsy writers who endeavour to gather consequence to themselves, from the consequence of the doctrines or characters they attack; those obnoxious infects that buzz about persons of high ftation, or diftinguished talents, and are perpetually watching to find some vulnerable part, which they never leave till it is completely flyblown. The Canadian Freeholder combats argument with argument, and opposes the honest dignity of reason to the grave voice of authority, and the solemnity of the judicial ermine.
The third argument on which Lord Mansfield infifted, was drawn from the opinion of the judges, as reported by Lord Coke, in Calvin's case, and of that of Sir Philip Yorke and Sir Clement Wearg (attorney and solicitor-general to George the first) in the year 1722, on a question referred to them concerning Jamaica
Our Author endeavours to fhew, that the opinion of the judges in Calvin's case, instead of favouring the doctrine ad'vanced by Lord Mansfield, was really contrary to it: and that the opinion of Sir Philip Yorke and Sir Clement Wearg (which is acknowledged to have been agreeable to Lord Mansfield's doctrine) was, according to Lord Mansfield's account of it, a very hafty opinion, upon which those learned lawyers appear to have bestowed very little attention ; and that it must also be considered as having but a small degree of authority in deciding a matter of this importance in favour of the Crown, on account of the bias which those gentlemen must be supposed to have had upon their minds, in favour of that side of the question, from their possession of lhe offices of attorney and solicitor-general.'
Perhaps there is some little artifice in this attempt to discredit the opinions of Sir Philip Yorke and Sir Clement Wearg,
and is there not fome inconsistency tool to serve one turn of the argument, they are supposed to be necessarily biased by their offices in favour of the prerogative; to serve another turn, they are represented paffing an opinion so highly important to the Crown, with much hafte and little attention. Inattention, and haste are furely not the usual symptoms of a head or heart eager to support a deep and destructive fyftem, either political or moral. Our Author, however, does justice to the professors of the law, in setting one law officer against another; and thus leaving his argument concerning this bias (which he tells us, must be supposed to operate on the mind of an attorney and folicitor-general) in perfect equilibrio. He produces the opinions of two gentlemen who filled the station of attorneygeneral, and opposes them to the two authorities cited by Lord Mansfield, The firft is that of Sir William Jones, given while he was attorney-general to Charles II, and probably about the year 1677, against the sole legislative authority of the Crown over the American Plantations; the other is the opinion of Mr. Lechmere, while he was attorney-general to King George I. which is nearly to the same effect with that of Sir William Jones. These two learned names are sufficient to redeem the reputation of the Long Robe * in the present instance. We fincerely with that such instances were more numerous ! Pity that they look fo like exceptions!
Our Author makes fome lively and just remarks on the very peremptory manner with which Lord Mansfield inforced his arguments in this cause; and which, he observes, is agreeable to his constant mode of speaking. This positiveness of assertion (he says) may perhaps be considered as one of the ingredients of his species of eloquence, as it certainly has the effect of dazzling for a time, and over bearing his hearers into an acquiescence in the truth of the propositions he fo peremptorily afferts.' We thall draw out the obfervation at full length.
FRENCHMAN. • Before I entirely quit the subject, I must beg leave to express my surprise ar che very positive and peremptory manner in which Lord Manífield asserted this power of making laws for conquered countries to be. long to the Crowo. “ No dispute, says he, was ever farted before upon the king's legislative right over a conqueft. It never was denied in Westminster Hall; it never was questioned in parliament." And again, “ No book, no saying of a judge, no opinion of any counsel,
• The first mentioned gentlemen ought to have been exempted from the onhandsome infinuation of the Ganadian Freeholder. The pernicious union of the political and professional characters in our great law officers, was not fo folly established in the reign of George the fift, as in the present times. The opinions in question were delivered by them as lawyers in council, not as statesmen and orators in the fenate; in their profesional, not their political character.
public public or private, has been cited on the other side ; no instance lia's been found in any period of our history, where a doubt bas beeå raised concerning it." These are Itrangely confident expressions, considering the weakness of the proofs he adduces in support of them; to which, indeed, they form a remarkable contrait. This, I confels, has surprised me in a man so much celebrated for his learoing and abilities as Lord Mansfield. I therefore with to know how you account for it; and the rather, because this extreme positiveness ia a man of his abilities has a tendency to dazzle and overbear my judgment, and make me yield implicitly to his opinion, notwithftanding I have satisfied myself, by our discuffion of this subject, that the reasons he has adduced in support of it, are very weak."
ENGLISH M A N. • Your remark is very jutt. There is a trange degree of positivenefs in bis assertions, that is very ill suited to the weakness of his arguments in support of them. And what makes it the more fure prizing is, that he himself ordered this case of Campbell and Hall to be argued no less than three times, on three different days, at the bar, before he decided it; which would, surely, have been unnecessary, and, consequently, injurious to the parties (by forcing them to suffer a needless delay, and incur an unneceffary degree of expence, in the profecution of their legal claim) if the matter had been so extremely clear and free from doubt as he, in delivering his judgment, represents it. But that positiveness of affertion is agreeable to his constant manner of speaking, and may, perhaps, be considered as one of the ingredients of his species of eloquence, as it certainly has the effe&t you mention, of dazzling, for a time, and over bearing his hearers into an acquiescence in the truth of the pro. positions he lo peremptorily afferis. But you, who have examined the reasons adduced by him in support of his affertion concerning the present subject, and have found them to be insufficient, ought to break through the inchantment, and to yield to the conclusions of your own understanding, and embrace what appears to it to be the truth; agreeably to the old Latin proverb, Amicus Plato; Amicus - Socratis ; fed magis amica veritas.'
The dialogue closes with a remark on the expediency of settling the law on this subject by act of parliament (we need hardly add the Author's words), “ in a manner contrary to Lord Mansfield's doctrine.”
* The Third Volume of this work is published, but we have not yet feen it. ART. XI. An Analysis of the Political History of India : In which is
considered, the present Situation of the East, and the Connection of its several Powers, with the Empire of Great Britain. 410, 6 s. Boards. Becket. 1779. ISTORICAL abstracts, necessarily wanting those details
which chiefly render history interesting, cannot be properly ranked among works of entertainment. They are, however, of real use, both to direct those who are entering on the study of history in the arrangement of facts, and to all those who
have made some progress in this study, in reviewing the path they have trodden; a path otherwise too intricate and perplexed to be clearly retraced. These purposes the present Analysis is very well adapted to answer, with respect to the modern history of India; the leading facts of which the Author has selected and arranged with judgment.
Towards the close of this abstract, we observe, that a strong attachment to the cause of the Nabob of Arcot, has led the Author to place the events, he relates, in such a light as to favour the claims of that prince. But after the long details, which have already been offered to the Public, relative to the dispute between the Nabob of Arcot and the Rajah of Tanjore, we cannot promise our Readers any very material information from what this Writer has advanced on this part of the subject.
As a specimen of the work, we thall give the Author's fentiments on the introduction of the English law into the Eastern Provinces :
Of ail che innovations which have been made by the legislature in the management of the Company's affairs, not one hash been fo loudly exclaimed against as the introduction of the English laws into the Bengal provinces. This, however, we are sorry to believe, hath proceeded more from a disappointment of interested views, than from a conviction of any pernicious conlequences that they are likely to produce. No man of reason, and of personal knowledge of the manners and customs of Hindoitan, can honeltly declare, he believes the English laws improper to be introduced into that country. Prejudice, indeed, may operate powerfully on some who have been. educated in all the principles of Alaric despotism, who have suled over provinces with an arbitrary sway, and whose words were law; but to a dispassionate enquirer, who judges with moderation, and who sees the necessity of coercion in a country where common justice hath been trampled under foot, not only by some of the English themselves, but universally by their servants and dependants, he will unhefitatingly confefs, that the rod of legal authority cannot but be of service to with-hold the hand of oppression, and to ensure to the honest labourer the scanty reward of his industry and trouble. This, it is said, has never been denied him. But what is more liable to misrepresentation than an unfetiled liace, where all domi. nion, alter the confusion of successive revolutions, is transferred to a few ftrangers, and where the conquerors, living under their own laws of freedom, amidst a nation of helpless and unproteded beings, exbibit a fituacion almott without parallel in history ?
• At the time when the power of the English nation gave effect to ufurparions of the private trader, who decided his own claims, opprefling the natives, and threatening the officers of government if they prefumed to interfere, the neceflity was soon perceived of confining the free merchants to the respective prelidences. But this did not eradicate the evil; the same practices were continued by the servants of the Company.