THE COURT were clear and unanimous, That this By-Law was bad. They held it to be manifestly contrary to the Intention of the Charter: (Which, Lord Mansfield said, had passed upon hearing all Parties, and after much Litigation).

It is made by a Part of the Corporation, to deprive the Rest of their Right to elect, without their Consent. The Charter gives this Right to the whole Body of the Commonalty: The By-Law confines it to a narrow Compass of the Sixty Seniors only. This expressly contradicts the Charter.

Mr. Justice YATES observed, that in the Case of Corporations, 4 Co. 77. b. the By-Law which was put in Question, did not vary the Constitution. And the great Ground of that Resolution was "that it must be made by common Assent." But a By-Law made by a Part of the Corporation to exclude the Rest, without their Assent, is not good.

And He likewise agreed to what Lord Mansfield had before observed, That where a Corporation is by Charter, and the Common-Council is created by the Charter, they ought (as being the Creature of the Charter) to be restrained from making any ByLaws inconsistent with it, or counteracting the End Intention and Directions of it: Though it may not be unreasonable to allow a greater Latitude in making By-Laws for the Good of the Corporation, to the Common-Council of a Corporation by Prescription, where the Common-Council is by Prescription, and such Prescription authorizes them to make By-Laws for the Good of the Corporation. Per CUR'. unanimously

JUDGMENT of OUSTER.

CAMPBELL v. HALL.

KING'S BENCH. 1774.

[Cowper, 204.]1

THIS was an action of money had and received, brought to recover export duties which had been exacted from the plaintiff

1 s. c. Lofft, 655, and also 20 Howell's State Trials, 239, in which latter place the arguments of counsel are given in extenso.

The statement has been framed from the opinion. - ED.

by the defendant, a collector for the King of Great Britain on the island of Grenada. A special verdict was found, to the effect that the island had been captured from the French and had been ceded by treaty signed Feb. 10, 1763, that by proclamations under the great seal, dated Oct. 7, 1763, and Apr. 9, 1764, the crown empowered the governor, so soon as the state of the island should permit, to summon a general assembly, in the manner used in the colonies and provinces of America, such assembly to make laws with consent of the governor and council, that the governor arrived on Dec. 14, 1764, that before the end of 1765 an assembly met, but that before the governor left England letters patent under the great seal, dated July 20, 1764, directed an export duty of four and one half per cent upon all dead commodities, the produce of the island, and that the defendant as collector had collected this duty from the plaintiff and still retained it in his hands.

LORD MANSFIELD, C. J. . . . The general question that arises out of all these facts found by the special verdict, is this; whether the letters patent under the great seal, bearing date the 20th July, 1764, are good and valid to abolish the French duties; and in lieu thereof to impose the four and half per cent duty above mentioned, which is paid in all the British Leeward Islands?

It has been contended at the bar, that the letters patent are void on two points; the first is, that although they had been made before the proclamation of the 7th October, 1763, yet the king could not exercise such a legislative power over a conquered country.

The second point is, that though the king had sufficient power and authority before the 7th October, 1763, to do such legislative act, yet before the letters patent of the 20th July, 1764, he had divested himself of that authority. . . .

A country conquered by the British arms becomes a dominion of the king in the right of his crown; and, therefore, necessarily subject to the legislature, the parliament of Great Britain. .

If the king (and when I say the king, 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 that particular dominion; as for instance, from the laws of trade, or from the power of parliament, or give him privileges exclusive of

his other subjects; and so in many other instances which might be put.

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 terms 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. . . .

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 Taws of himself without the consent of parliament (7 Rep. 17 b). 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 withold 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." ..

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, unti! 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 Tike 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.1

1 As to the exercise of the powers of municipal government by an occupying army, see New Orleans v. Steamship Co., 20 Wall. 387 (1874).

As to the power of the President to establish provisional courts in acquired territory, see Cross v. Harrison, 16 How. 164 (1853) (California); Leitensdorfer v. Webb, 20 How. 176 (1857) (New Mexico); Santiago v. Nogueras, post, (1909) (Porto Rico). — ED.