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with them."! Lord Mansfield, however, it should be said, disa sented from this version of the report, though we know not what version of it he would have substituted for it.
It is not however probable, that a new settlement, formed of emigrants from the mother country, should desire to throw off allegiance to her, and so lose her protection. Independence is coveted when the colony has waxed powerful, and her interests are either opposed to those of the old country, or when the internal administration of the colony is unsatisfactory to its inhabitants. Nevertheless, it is well to investigate what is the constitutional right which is vested in the governing powers of the united kingdom to fix a rule over colonies. As to the constitutional right of the sovereign, independently of parliament, to rule despotically possessions acquired by conquest, the language employed in Calvin's case (Coke Rep.) would seem to sanction the doctrine in favour of absolutism. “If a king come to a kingdoni by conquest, he may at his pleasure alter and change the laws of that kingdom; but, until he doth make an alteration, the ancient laws of that kingdom remain.” The leading cases of Campbell v. Hall, and Fabrigas v. Mostyn, which will be found minutely reported in all their stages in State Trials (vol. 20), contain the best comment on the above proposition. In the former, Lord Mansfield said, “a maxim of constitutional law with all the judges in Calvin's case, and two such men as Sir Philip Yorke and Sir Clement Wearg, I take it for granted, will acquire some authority even if there were any thing 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, when it even was questioned.” It was not every thing, however, which Lord Mansfield found in Coke which he accepted as law; for, during the argument, the great authority was cited as having laid down, that “if the king make a conquest of Christian country, their laws remain till he gives them others;
1 Hargrave's argument in Campbell o. Hall, 20 State Trials, p. 295.
but if be make a conquest of an Infidel country, they are presumed to have no laws; he may give them what law he pleases, but guided by natural justice and equity." Lord Mansfield, however, was shocked at this distinction, which he said was “wholly groundless, and most deservedly exploded,” and exclaimed to the counsel, “Don't quote the distinction, for the honour of Lord Coke."
Nor was Lord Mansfield right in asserting that no authorities had been cited; for a very eminent writer on jurisprudence, who has referred to the very point, was actually cited by Mr. Macdonald. “I take it," said this eminent counsel, “ to be clear, that the sovereign of the state conquers not for himself personally, but for the state ; and, according to this, I have a great authority which I shall beg leave to cite to your lordship. Vatel says, * It is asked to whom the conquest belongs, the prince or state? The question ought never to have been asked. Whose are the arms; where the expense ? If he conquered at his own, yet whose blood is shed ?!” Three elaborate arguments were held on this case, and the judgment is in our opinion the least satisfactory part of it. In truth, the rational and constitutional idea of colonies and their relations to the state had not then been arrived at in England.
The weight of Lord Mansfield's authority, however, in the case of Campbell v. Hall, so far as the prerogative right of the Crown to legislate for, and tax, a conquered country, is concerned, must be considered to be in its favour. At the same time, we confess that we attach more value to the principles enunciated, and the arguments urged, by the very remarkable men engaged in the case, especially by those who represented the plaintiff. The learning which this case subsequently produced, particularly that to be found in the second dialogue, entitled “The Canadian Freeholder," has been much and justly praised in a constitutional point of view, and as being “replete with sound and perspicuous reasoning.” The decision arrived at by the court was, that an export duty might be levied by the authority of the Crown in the island of Grenada (which was surrendered to General Monck
ton in 1762); and, on the particular facts of the case, the judgment may be acquiesced in, but its interest consists in the discussion of principles which were involved in it. Macdonald, Thurlow, Hargrave, Alleyne, Davy, and Glyn, were of counsel for the respective parties, which of itself would make it a notable piece of litigation. On the third and last argument, Mr. Thurlow (the Attorney-general) took up a position somewhat different from that occupied by his predecessor. He said, “If I have to contend for an absolute independent legislative power in his Majesty, I have not that idea of the authorities or of the duties of my profession that I could have engaged myself in the task of supporting it.” But he found it consistent with the idea of both to propose the doctrine of a “subordinate” legislative authority vested in the Crown; an awkward theory, and not apt for the argument rested on it.
We do not fear that questions relating to conquered colonies like Grenada, and involving such principles as came under discussion in Campbell v. Hall, are likely to be again raised. It is not probable that we shall possess ourselves of any new colonies by conquest. Yet the doctrines held in the discussions are of great interest when we look to what the legal sages thought and said on the subject, and what is the tendency of authorities. The greater number and most important of our colonies are those which have been settled by voluntary emigration of British subjects ; and Mr. Bell observes, that even the hypothetical legislative power in the Crown, suggested by Lord Mansfield in Campbell V. Hall, is confined to a conquered country. Sir W. Jones (Charles II.'s Attorney-general) said, “the Crown had no more right to exercise such a power than the settlers would have to discharge themselves of their allegiance.” Mr. Lechmere (George I.'s Attorney) said, "that any minister who would advise the crown to exercise such a power would be guilty of high treason." And Sir Philip Yorke and Sir Clement Wearg, George I.'s lawyers, said, “the settlers would be legislated for only by an assembly, or by an act of parliament.”
The next question propounded is, if the Crown has not absolute
power, what are the rights of the parliament to legislate for possessions beyond the liunits of the united kingdom ? The constitution of. the United Kingdom, its laws, and the machinery by which they are maintained and altered, are made for the inhabitants of the country itself. “What right,” it is asked, “can parliament possibly have to legislate for a settlement made by a portion of their own countrymen, at the expense and risk of that portion, unless, at least, the settlement is to be treated as a mere local extension of the united kingdom, the inhabitants of which are to enjoy all the rights and liberties enjoyed in the united kingdom, parliamentary representation included ?” Lord Mansfield's position is, that it is “absurd that in the colonies they should carry all the laws of England with them--they carry only such as are applicable to their situation." But this does not afford a satisfactory answer to the question. There is a “fundamental principle” of the British constitution, that the commons are not to be taxed but with their consent. The redress of grievances, and the grant of monies to the crown,
have a vital correspondence in our constitution, the lack of which, in any colony, places it in a very different relation to its government. The practical answer to this difficulty is, in our opinion, however, to be found in the fact, that colonists may find it useful to forego certain of the privileges which they enjoyed at home, in consideration of certain other advantages conceded to them. “Rights," in fact, may be waived for convenience sake, though they may also be insisted on, as was done by the United States of America; or new condi. tions applicable to the wants of a colony may be invented. It is occasionally, and in certain stages of a colony's history useful, to have a government provided for it (if it is a sensible and liberal one), rather than that it should draw upon its own small body for the same purpose. But then such a colony may well contend it is their consent which gives the title to the exercise of such government, and that the question of right has not been relinquished.
The question of their original constitutional rights bas, by some of the more important of the colonies, been waived by
their acceptance of provincial constitutions, of different kinds. i What is now wanted, both for the colonies and England, is a : knowledge, by the members of the houses of parliament, of what are the mutual rights and duties of both the parent state and the colonies, and of the bases of the relations which have thus arisen and may still arise. For whom is God's earth created ? and for whose benefit do colonists migrate from the parent state? These: are the two questions which, if satisfactorily answered, would solve many difficulties. To the second we at least can give a reply. Colonies are formed for the special benefit of the colonist, and the general benefit of mankind, who profit in proportion to the success with which old countries are relieved of surplus population, and new countries are opened up.
The doctrine propounded in former ages, that colonies settled by Englishmen were for England's sole behoof, may be referred perhaps to the fact, that in those times the emigrants were drawn from a class of comparatively small political power, which, however, since then has had an increasing influence over the legisla- , ture. “For more than two centuries,” says Lord Grey, "the great object of all European nations in seeking to obtain possession of colonies, was the gain supposed to accrue from the monopoly: of their commerce, which it was the practice for the parent state , to maintain ; while, on the other hand, it gave to their produce preference in its own market." The suicidal and selfish policy of the commercial system of protection as applied to colonies having been at last abandoned, and with it the supposed advantage of exclusive trading, the characteristic and indeed plausible inference was drawn by the monopolist politicians, as well as by others, that colonies were no longer of any use to the mother country, and therefore they should be cast adrift. They were now suckers : and not feeders, it was said. The colonies which had been unnaturally nursed, and had their commerce and political economy alike perverted, began on their own part to ask whether they should derive any further advantage from the connection with the mother country, when all their supposed trade privileges were
- Colonial Policy-of Lord John Russell considered.