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SECTION IX.: NULLITY OF NEW SOUTH WALES LEGISLATION, PROVED BY THE GRANADA CASE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 [1843]

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The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.

Part of: The Works of Jeremy Bentham, 11 vols.

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SECTION IX.

NULLITY OF NEW SOUTH WALES LEGISLATION, PROVED BY THE GRANADA CASE.

If any addition could be wanting, to the proof already given, of the illegality of the legislative power exercised by the sole authority of the crown in this colony, it might be drawn, and with full assurance, from this Granada case.

From the whole tenor of the argument of the court, as delivered by Lord Mansfield, and taken in short-hand by the reporter in that case, two propositions may be deduced with full assurance:—

1. That in no case had any judicial decision been given, down to that time (1774,) recognizing the right of the crown to legislate, without parliament, over an English colony, howsoever acquired, (whether by conquest, as Granada was, or without conquest:) that therefore, as to every point not necessarily comprised in the decision given in that Granada case, the question, so far as concerns judicial decision, in contradistinction to extra-judicial opinion, remained open to that day; and from thence, it may be added, to the present. The above-mentioned decision in the St. Alban’s case—the decision disaffirming the king’s right to legislate over Englishmen without parliament—has therefore nothing to contradict it.

2. That, although by that argument, in the case of the foreign inhabitants of a country acquired by conquest, the right in question is affirmed: yet, in that same argument, in the case of a colony acquired in any other way than by conquest, it is expressly disaffirmed; and in particular, it is disaffirmed in the case of all the several other colonies at that time in existence.

3. On one condition indeed, it is, in the non-judicial opinion relied on by that same argument, in a certain way, affirmed: and the condition is—that, as in those other colonies, a share be taken by an assembly of the colony in the exercise of the right. But, by the affirmance of the right, restrained as it is by this condition, the case of Mr. Pitt, in his exercise of it, will not be bettered. For, of any legislative assembly in the penal colony of New South Wales, there has never been so much as a shadow.

Nor, even thus, is the affirmance given to the right a distinct and positive one. It is only not disaffirmed, because not disputed; both parties (the crown and the local assembly) being alike engaged by their respective views and interests to assume it. These propositions, being of such importance, may seem to have a claim to very specific proof: such proof shall not be wanting.

Of all these propositions proof will be afforded at the same time, by the two only authorities stated as having any bearing upon the case. These are—

1. A dictum in 1608 by Lord Coke, Chief-Justice, in his report of the famous case called Calvin’s case: the case in which, on the accession of James the First, a right on the part of Scotchmen to certain privileges of Englishmen, was claimed and allowed. 2. A non-judicial opinion, given in 1702 by two practising lawyers—one of them at least at that time a servant of the crown—Sir Philip Yorke (afterwards Earl of Hardwicke) and Sir Clement Wearg, on a question relative to the right of the crown to tax Jamaica: an opinion which, so far as it went to the affirmance of the right, in the case of a colony obtained by conquest, appears to have had for its ground, and only ground, that same ante-colonial dictum thrown out in Calvin’s case.

As to what is said in Calvin’s case, not applying (if to any colony) to any other than a colony acquired by conquest (such as New South Wales, most certainly, is not,) to scrutinize into it is a task that may here be spared.

The proposition is a mere dictum: collateral, and not even very perceptibly relevant, to the case in hand, the words of it, when extracted and wiped clean, as it has been very carefully by Lord Mansfield, from the portentous mass of absurdity and atrocity with which he found it entangled,* are as follows:—“If a king 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 [of] descent, he cannot change the laws of himself, without the consent of parliament.”

Of the opinion given by Yorke and Wearg, the account given by Lord Mansfield is in these words:—

“In the year 1722, the assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearg, 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 on 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’s being in the one state or the other.”

“In the one state,” says Lord Mansfield, “or the other.” Neither did he, therefore, any more than those whose opinions he was adopting, know of any third state. They recognized not any such state, as that of a colony acquired otherwise than by conquest, and yet capable of being legislated upon by the crown alone—by the crown, without any further sanction, either that of a local assembly, or that of the supreme legislative body in the mother country—without any check at all upon absolute autocratic power—without the necessity of any consent, either on the part of any special deputies from that particular division of his Majesty’s subjects, or on the part of the representatives of the whole.

In the case which drew this argument from Lord Mansfield, the point he was bound to determine, and which he accordingly did determine, was—that, as matters stood, the power of taxation, as exercised by the crown in Granada, was not legal. Another point which, being at liberty to speak to it or not, he thought fit to speak to was, that if matters had been otherwise, such power would have been legal. If, in humble imitation of such high and sincerely respected authority, and in precisely the same view, viz. that of seeing important constitutional questions settled on the broadest and most solid grounds, it may be allowable for an obscure ex-lawyer, on this same ground, to travel, as the phrase is, a little way out of the record, I will venture to state it as a question, which, notwithstanding the opinion so distinctly given by that great lawyer in the affirmative, remains still quite open, whether, even in the case of conquest, in any colony acquired since the Revolution, Trinidad for example, the right of the king to legislate without parliament—I mean, without express authority from parliament—would, in case of dispute, be found maintainable in law?

Over Englishmen, it stands expressly negatived (as already mentioned) by Magna Charta, and by the interpretation put upon that statute, by the judicial decision given in the St. Alban’s case.

Over foreigners, inhabitants found existing in a colony acquired by conquest, it would (I am much inclined to think) be regarded as negatived, as well as over Englishmen, by the two connected constitutional principles, recognised in the 4th and 5th articles of the Bill of Rights: viz. that neither in actu nor in potentia, shall a king of England have, as such, without the express allowance of parliament, either a separate army of his own, or a separate purse. And in this light, it appears from Edmund Burke, that the Bill of Rights was most publicly (viz. in the House of Commons) and constantly, and, for anything that appears, without contradiction, considered by George Grenville, himself a lawyer—(according to Burke, even too much of a lawyer)—before he was a minister, and this not on the ground of policy merely, but of actual law.

Be this as it may, what is certain is—that the question is still open, notwithstanding the decision in the Granada case; because in that case, though an opinion was given, affirming the right of the crown to legislate in case of conquest, that opinion was not necessary to the decision then pronounced.

How much better for this country, as well as so many other countries, would it have been, if instead of fishing for drops of sense out of the extrajudicial ravings of Lord Coke, men of law had attended, on the one hand, to the direct decision of the judicial authority, as reported, in sober though very energetic language, by the same God of their idolatry, in the St. Alban’s case; on the other hand, to that of the legislative authority, as displaying itself in the Bill of Rights! If they had, nothing in the way of legislation would, from first to last, have been done in English-America, but by parliament, or with express authority from parliament. It would not then have been so much as dreamt of, that it was in the power of the king, by confederating with a part of his subjects, withdrawing themselves for this purpose to a vacant territory remote from the eye of parliament—that it was in the power of his law-servants, by any such management, to oust parliament of its rights: I mean its exclusive right of legislation, as established in the St. Alban’s case. Dissension would then have been nipped in the bud; and the American war, with all its miseries, and all its waste of blood and treasure on all sides, would have been saved.

Unfortunately, in the St. Alban’s case, the scene not lying in America, nor any thought being entertained by anybody about America, no such word as America is to be found. Of colonies, as little: for at that time scarce had any such idea as that of colonization ever presented itself to any English mind. And thus it happened, that when America came to be the order of the day with lawyers, nothing appeared in their common-place books, to guide them to that case.

What is curious enough, is—that in the very first instance of a grant of land made by a charter from the crown of England to intended settlers in America, these portions of American ground were declared to be put upon the same footing in point of law, as if contained within a spot of English ground;—the manor of East Greenwich.* And with the St. Alban’s case, then comparatively a recent one, before their eyes—with this case, one of the most prominent cases, in the most prominent of all law books, full in their teeth, were these crown-lawyers audacious enough to make their king grant, to these inhabitants of East Greenwich, privileges which had already been declared illegal, not fourteen years before, when granted to the inhabitants of St. Alban’s. But the grant was of the number of those exertions of prerogative, which were not expected to come before an English court of justice, any more than they were intended for the eye of parliament. Parliament, never for two days together sure of its own existence, had too much of its own and the whole nation’s business upon its hands, to be inquisitive about a handful of obscure adventurers, who, turning their backs upon their country, betook themselves to other laws.

All this, except what concerns the want of power, on the part of the servants of the crown here in England, to legislate over Englishmen in New South Wales, and without any of those limitations, without which, or some of them, no such power had ever been exercised by any servant of the crown of England anywhere else, is, as I have already observed and acknowledged, a mere work of supererogation, with reference to New South Wales. But there are other places, with reference to which it may be not altogether so immaterial:—say Trinidad for example.

Mischievous as the effect of these questions might be, if ill-timed, I start them without any sort of scruple. Parliament being now sitting, the tendency as well as the object of them is, not to create confusion, but to prevent it. How desirable, on every account, that rights of such importance should be fixed at once upon the rock of legislation, instead of being left to totter upon the quicksands of expected judicature, waiting for “the competition of opposite analogies!”* Can it be worth while to leave so much property a prey to insecurity—so many confident expectations a prey to disappointment—for the chance of saving a little longer the stump of a rotten prerogative, and perhaps the pride of a few lawyers?

But, all collateral questions dismissed, thus, on the ground of law, stands the government of New South Wales. Over Britons or Irishmen, in or out of Great Britain and Ireland, the king, not being himself possessed of legislative power, can confer none. To confer it on others—those others being his instruments, placeable and displaceable by himself at any time, is exactly the same thing as to possess and exercise it himself.

The displaceable instruments of the crown—the successive governors of New South Wales—have, for these fourteen years past, been exercising legislative power without any authority from parliament: and either without any authority at all from anybody, or at most without any authority but from the king: and all along they have been, as it was most fit they should be, placed and displaced at his Majesty’s pleasure.

And among those, over whom legislative power has thus been exercised, have been individuals by hundreds, or, ere this, by thousands, who, so far from subjecting themselves to this power by their own consent, or having been subjected to it by any consent on the part of their ancestors, under whom they were born and bred, have all along been doing their utmost to make their escape out of the reach of it: and this very absence of consent—the very energy and notoriety of their repugnance—is among the very grounds on which, in the most important case of all, that of confining to this land of bondage such as are free by law, the power thus exercised over them would, if at all, be justified.

Of two things, one. Either there is not at this moment any legal power of legislation in New South Wales, or there is not any legal power of legislation in Great Britain—Magna Charta is waste paper. If, without fresh support from parliament, the constitution of New South Wales stands, that of Great Britain and Ireland is no more. If, without authority from parliament, the king can legislate over Britons and Irishmen in New South Wales, so can he in Great Britain and Ireland. If, without authority from parliament, the king can confine to that place of exile any such quondam bondsmen, reconstituted freemen by the expiration of their legal terms of bondage, so likewise can he deal by freemen who never were in bondage. If men of either description can be thus confined when there, with equal right may they be sent there. The King is absolute: and, instead of convening Lords and Commons to Westminster Hall to join with him in making laws, may send them to have laws made upon them in New South Wales.

[* ]Pronouncing the laws of every infidel (i. e. non-christian) country void in the lump, and so forth: Turkey, Hindostan, and China, for example. Whenever the khan of the Tartars sounded his trumpet after eating his dinner, it was to allow other princes to eat theirs. When this christian barbarian thus sounded his trumpet, it was to prohibit other potentates from eating their dinners: at least from eating them in peace and quietness. All infidels (he says) are perpetual enemies.

[]Speech upon American taxation, 19th April 1774; 3d edition, 1775, p. 54.

[* ]‘All the lands within the precincts of the colonies (viz. between 34 and 45 degrees of latitude) were on petition to be granted by the king,’ “to be holden of the king, as of his manor of East Greenwich, in Kent, in free and common soccage only, and not in capite.” Lind, Remarks on the Acts relating to the Colonies, p. 94.

[]Another example may help to show the force and virtue of such exercises of regal power, in the character of precedents. On the 23d of March 1609, about three years after the first charter, a second is granted to the same company, with additional powers. Among these is a power to any two of the council of the company resident in England, to send out of England—to send out to their colony—“there to be proceeded against and punished, as the governor, deputy, or council there shall think meet”—any persons who, after engaging in the service of the company, and having received earnest-money, shall either have refused to go out thither, or have returned from thence.a

What cared these men (I mean the crown-lawyers who drew this charter) about the St. Alban’s case, and the court of judicature that decided it? As little as about Magna Charta which it expounded: as little as their successors, who drew the New South Wales Act for Mr. Pitt.

[* ]Paley.

[]Another example may help to show the force and virtue of such exercises of regal power, in the character of precedents. On the 23d of March 1609, about three years after the first charter, a second is granted to the same company, with additional powers. Among these is a power to any two of the council of the company resident in England, to send out of England—to send out to their colony—“there to be proceeded against and punished, as the governor, deputy, or council there shall think meet”—any persons who, after engaging in the service of the company, and having received earnest-money, shall either have refused to go out thither, or have returned from thence.a

What cared these men (I mean the crown-lawyers who drew this charter) about the St. Alban’s case, and the court of judicature that decided it? As little as about Magna Charta which it expounded: as little as their successors, who drew the New South Wales Act for Mr. Pitt.

[a]Lind. Part II. § 1, p. 100.