"Whether the letters patent under the great seal, bearing "date 20th July, 1764, are good and valid to abolish the "French duties; and in lieu thereof impose the four and a "half per cent. duty above mentioned, which is paid in all "the British Leeward islands."

It was contended at the bar that the letters patent were void on two points. The first point was, that even if they had been made before the proclamation of October 7th, 1763, yet the king, of himself and without the concurrence of parliament, could not exercise such a legislative power over a conquered country. After an elaborate discussion, this point was decided to be erroneous. It was held to be unquestioned and unquestionable that the king had such a right to legislative authority over a conquered country.

The second point, upon which it was contended that the letters patent levying the duty were void, was as follows, namely:

"That though the king had sufficient power and author"ity, before the 7th October, 1763, to do such legislative "act, yet before the letters patent of 20th July, 1764, he "had divested himself of that authority."

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This second point was decided to be correct. The opinion states that "upon the second point we are of opinion "that before the letters patent of the 20th July, 1764, the "king had precluded himself from the exercise of a legis"lative authority over the island of Grenada. The first "and most 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 inhabi"tants 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 col"ony will admit) to call an assembly to enact laws, etc.' "With what view is this made? Is it to invite settlers and "subjects: and why to invite? That they might think "properties, etc., more secure if the legislation was vested "in an assembly, than a governor and council only. Next,

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"having established the constitution, the proclamation of "the 20th of March, 1764, invites them to come in as pur"chasers; in further confirmation of all this, on the 9th of "April, 1764, three months before July, an actual commis"sion is made out to the governor to call an assembly as "soon as the state of the island will admit thereof. You "observe, there is no reservation in the proclamation of any "legislature to be exercised by the king, or by the gov"ernor 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 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 of "an assembly immediately on the arrival of the governor. "But no assembly was called then or at any time after"wards, till the end of the year 1765.

"We therefore think, that by the two proclamations and "the commission to Governor Melville, the king had imme"diately and irrevocably 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 con"sent 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 sub"stituting 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 in"verting the order in which the instruments should have "passed, and been notoriously published, the last act is · contradictory to and in 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,

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"to use the words of Sir Philip Yorke and Sir Clement "Wearg, 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."

It is thus clear that the king legislating by prerogative had established a constitution for the island of Grenada and that another subsequent act of legislation by prerogative was judicially decided to be contrary to a colonial constitution binding the king and therefore was held void.

According to the decision of the English judges in Campbell v. Hall the king's prerogative power of legislation over the colonies was limited by positive law. The American colonies likewise maintained that that power was so limited. American and English opinions were thus agreed upon the principle of limitation by law, however much they might differ in drawing the line defining the legal limits binding the king in so legislating. As to the legislative power of parliament over the colonies, the state of opinions was different. When the troubles before the American revolution began, English opinion maintained that the said power of parliament was unlimited and held that whether it legis lated rigorously or rightfully, the colonies were equally bound in all cases by all statutes actually made for them. Summo jure parliament could enact jus iniquum for the colonies as well as for England. On the other hand, American opinion maintained that parliamentary legislative power over the colonies was, of right, limited by the colonists' constitutional rights. This limitation by constitutional right, it will be observed, is distinctly different from a limitation by positive law. This difference was especially obvious in relation to the form of government as distinguished from the matter of government. This is exemplified by the relation of the judiciary to the two kinds of legislation. A challenged act of prerogative legislation could be decided unlawful and held therefore void by the judiciary, as was done in Campbell v. Hall. But at that very date no court could decide a challenged act of parliament to be contrary to constitutional right and hold it therefore void. Every court

must therefore hold such act of parliament to be binding, regardless of its being truthfully or untruthfully challenged on the ground of constitutional right.

These distinctions are of importance for the purposes of this Essay. They show that, if prerogative legislation should exist under an American written constitution, and the state judiciary should decide wrongful and hold void an act thereof, so doing would merely be following the example of the British constitution in the reign of George III. But it would not be following that example for the state judiciary to decide unconstitutional and hold void a statute of the state legislature. No American constitution could establish such a judicial competency, without differing from the British constitution as it was when Blackstone wrote his Commentaries. At the same time the American idea of such an enlarged competency must have an historical relation to the English idea of the more restricted competency in Campbell v. Hall.

CHAPTER XX.

Of acts of colonial legislatures repugnant to the laws of England and of the nullity thereof consequent upon such repugnancy.

Of the exercise of the prerogative concerning colonial acts questioned or doubted for such repug

nancy.

Of the case of Winthrop v. Lechmere “6 appealed home" from the colony of Connecticut.

No. 1. Of the principle that the laws of a colony should not be repugnant to the laws of England.

No. 2. Of the distinction between a colonial act repugnant to the laws of England and one conflicting with an act of parliament legislating for the colonies.

No. 3. Further considerations concerning the word "repugnant."

No. 4. Of the nature of the exercise of the prerogative, when the king declared in council that a colonial act was null and void because repugnant to the laws of England.

No. 5. Of the colonies which transmitted, and those which did not transmit, the acts of their legislatures to the king in council for his approval or disapproval.

No. 6. Of the modus procedendi in disapproving laws in three different classes of cases before the king in council.

No. 7. Of the case of Winthrop v. Lechmere, temp. George I. and George II.

No. 8. Whether the order in council determining Winthrop v. Lechmere was purely judicial, or partly judicial and partly legislative.

No. 9. Of certain appeals to the king in council from Canada since 1867.