« AnteriorContinuar »
telligent and argumentative a writer, in what he deems an excursion of so much moment.
After mentioning the weak, unwarlike; and disunited state of many of the large provinces of Indoftan, he urges the danger. that may arise to our liberties from the exercise of this prerogative, in the following manner :
ENGLISH M A N. • We have seen that the rich provinces of Bengal, Bahar, and Orixa, in that great peninsula, have already, in effect, been reduced to a state of obedience to the Ealt-India company, though they continue, nominally, to be governed by one of their own natives, who is permitted to call himself their nabob, or sovereign. The public revenue collected in these three provinces is generally allowed to be three millions fix hundred thousand pounds sterling. This revenue was collected there in the time of the independent nabobs, or sovereigns, of those provinces : and therefore, I presume, the taxes, or rents, out of which it arises, were imposed upon the inhabitants of them by what was then considered as the legal authority by which those provinces were governed. This revenue has, for these eight, or nine, years past, been received by the East-India company; who have been invested with the office of Dewan, or public treasurer, of those provinces : and they allow a small portion of it (two, or three, hundred thousand pounds a year,) to the nominal, or dependent, Nabob, whom they have permitted, or, rather, appointed, to govern those provinces under their protection ; . and they employ another part of it in the maintenance of their own armies, and forts, and other establishments, civil and military, in that country; and then they divide the remainder of it (over and above what is necessary for these purposes,) amongit themselves, that is, amongst the several proprietors of East-India Itock. Now let us suppose that another such conquest should be made in that country by the crown instead of the East India Company; as for example, a conquest of the province of Arcor (of which we have lately heard a great deal,) or of the province of Decan: and that the public revenues regularly collected in the country ro conquered Thould amount to three, or four, millions of pounds sterling per annum. Of this large revenue it is probable that, with good management, one or two millions might be sufficient to defray the expences of the civil and military eltablishments that would be found necessary for the maintenance of the king's authority and the adminiftration of government in the said country; and consequently that two millions of pounds sterling might be remitted every year to England, to be disposed of as the king thould please. There is nothing in this supportion that is at all improbable; nor would the making such a new conqueft, and the acquisition of such a new revenue, by the Crown be at all inconsistent with the rights of the East India Company, or their enjoyment of the acquisitions they have already made of the provinces of Bengal, Bahar, and Orixa. Now, with such an annual increase of the royal revenue, the Crown might either govern the British nation without the affistance of parliament, (as king Charles the Firit did during the space of eleven years, till the people had almolt for
got what a parliament was) or, (which would be a milder and safer way of proceeding,) it might so influence the elections of members of the House of Commons as to cause a great majority of them to be chosen out of such persons as the miniiters of state should have recommended for that purpose ; or, if those members had been choser freely, it might influence them, when chosen, to pass such bills, and give their sancion ço such measures, (whatever their tendency might be,) as the Crown should think fit to adopt. In either of these three ways it is evident the freedom and excellence of the British constitution would be greatly impaired, and, in the first way, totally extinguished. You now see the danger that may arise from this other prerogative of the Crown, “ to dispose of the revenues already legally existing in conquered and ceded countries in such manner as it ihall think fit,” which is much more generally allowed to belong to the Crown than che former prerogative of imposing laws and taxes on the inhabitants of such countries.
FRENCHMAN. "You have made it very plain to me, that this prerogative may become exceeding dangerous to Great-Britain ; and therefore I join with you most heartily in wishing it were put under some regulation, or restraint, that would remove this danger. But, pray, in what manner would you propose to regulate this dangerous prerogative? For I do not think it would be easy so to regulate it as entirely to remove the danger you have been describing.
ENGLISHMAN. • I agree with you that it cannot easily be regulated so as to avoid those dangerous consequences we have been speaking of. Nay more, I believe it cannot potlibly be so regulated. And therefore (as we now are speculating upon this subject, and inquiring, not what is most likely to happen, but what is beft,) I do not wish it to be regu. lated, but to be wholly given up by the crown, and vested, by act of parliament, in the king and parliament conjointly, “ so chat, for the future, the public revenues of all such countries as shall be conquered by the British arms and ceded to the crown of Great Britain, which Thall be found to be legally existing in the said countries at the time of the conquest and ceision of them, should be disposed of by act of parliament only ;" like the overplus of the taxes granted by parliament in Great-Britain itself, above the sums nccessary to defray the expences of the services for which they are granted, which overplus, I am assured, is always reserved, by special clauses in the acts by which those caxes are granted, for the future disposal of parliament...
FRENCHMAN. • This would undoubtedly be a moft desirable method of prevent. ing the dangers we have been speaking of. But, as it would so greatly dimioith his Majesty's perfonal emoluments from all future acquisitions of his crown, it seems hardly reasonable to expect that he should consent to it; and without such consent, I presume it can. not be taken.
ENGLISH MA N. • It certainly cannot. But there is reason to think that, if his Majesty were to be folicited by his parliament to give his aflent to a bill of this kind, or even if he were to be strongly advised by his
minifters of state to declare to his parliament before-hand his difpo. Sition to assent to such a bill, (which would be a more decent and proper way of conducting the business than the other (he would graciously condescend to facrifice his own personal intereit to the safety and fatisfaction of his people. For he has already vouchfafed to do a fimilar act of noble generosity cowards his subjects, in giving up to the public revenue of Great-Britain the sum of seven hundred thousand pounds fterling, which was the produce of the sales of the French ships which had been taken by the late king's ships of war in the years 1755 and 1756, in the beginning of the hostilities of the late war against France, and before the war had been declared in form, and the usual act of parliament had been paffed for vetting the property of the ships and goods, that should be taken at sea in the course of the war, in the officers and failors of the vessels by which they should be taken. After such an act of generofitý one can hardly doubt of his Majesty's willingness to consent to such an act of parliament as I have mentioned, if he were to be advised to such a meafure by his parliament, or by the ministers of ftate whom he honours with his confidence.
FRENCHM AN. The instance you have mencioned of his Majesty's generosity to his subjects in giving up to them the said sum of seven hundred thousand pounds iterling, is indeed a very noble one, and warrants you in the opinion you entertain that he would not refuse his royal affent to an act of parliament of the kind you have suggested, if it were properly recommended to him. The probability therefore of such an act's being passed will depend upon the difpofition of the parliament to request, or of his Majeity's ministers of state, to advise his Majesty to agree to such a measure. How far they are likely to folicit or recommend such a measure, I know not : but to me it appears to be a matter of so much importance, that I fhould think it a good bargain for the British nation to purchase his Majesty's refignation of this prerogative at the expence of half a million, or even a million, of pounds fterling, which (as the emoluments which his Majesty might derive from this prerogative are diftant and uncertain,) might, I lhould imagine, be thought no contemptible compensation for the loss of it. And thus both the king and his subje&s would reap benefit from such a measure.
ENGLISHMAN. • I have no objection to purchasing so great a security for the national liberties for what the lawyers call a valuable confideration; more especially as it would give the resignation of this prerogative on the part of the Crown the greater appearance of freedom and perfect approbation, and would thereby contribute to make it more binding and permanent. Nor do I think the greater of the sums you have mentioned too great a price for so important an advantage. But now, if you please, we will go back to the subject we were before confidering, when this inquiry concerning the danger arising from the king's right to the legally-existing revenues of conquered countries, called us away; that is, to the right of making new laws for, and impofing new taxes on, the inhabitants of such countries ; which right Lord Mansfield has declared to be vested, by the English
contitution, in the king alone, without the concurrence of his parliament,"
The reasons aligned by Lord Mansfield in support of his opinion, of the legillative power of the Crown over conquered countries, were chiefly these three. First, The King's acknowledged right of making war and peace, which he supposed to include in it the power of making laws and imposing taxes on the conquered people ; fecondly, The practice which has taken place, with respect to the countries which have from time to time been conquered by the Crown of England, such as Ireland, Wales, Berwick upon Tweed, and Calais, and more especially, the little territories of Gibraltar, and the Inand of Minorca, which have been conquered from the Crown of Spain, and ceded to, and enjoyed by, the Crown of Great Britain, ever Since the peace of Utrecht. Thirdly, The opinions of former judges and eminent lawyers on this subject, testified by occafional and collateral declarations of the judges concerning it, or
by the answers given by lawyers out of court, to questions of · law upon which they were consulted; there having been no ex•
press decision upon the point before that in the case of Campbell and Hall. Our Author is of opinion, that none of these seasons are satisfactory or conclusive. We shall endeavour to digest, methodically, the principal arguments which he has employed to thew their insufficiency, and to put our readers in possession of the thread of his argument, disentangled from the tedious forms of dialogue-writing.
It is not very evident what connection subsists between the right of making war and peace, which is vested in the King, as the executive magistrate, and as wielding the sword of the Itate, and a permanent legislative authority that is to operate when the sword is returned to the scabbard. Perhaps it will not be more evident, when we have heard his Lordship’s reasoning upon the subject. The intermediate links by which powers, so wide of each other, are connected, must be found (if they are to be found any where) in the following words :
“ The King (says his Lordship) has a power to grant or refuse a capitulation to the conquered enemy. If he refuses it, and puts the inhabitants of the country to the sword, or extirpates them, as he obtains the country by conqueft, the lands of it are his, and he may grant them to whom he pleases : and if he plants a colony upon them, the new settlers will hold the shares of the said lands which Ihall have been allotted them, subject to the prerogative of the Conqueror. If, on the other hand, he does not put to the sword, or' extirpate the old inhabitants, but receives them into his obedience, and grants them a continuance of their property in their own lands, he has power to impose a tax upon them. He is intrusted with terms of .. Rev. Sept. 1779. .
making peace at his discretion ; and he may retain the conqueft, or yield it up, on such conditions as he shall think fit to agree to. This is not a matter of disputed right. It has hitherto been uncontroverted, that the King may change a part, or all, of the political government over a conquered dominion.”
Wc agree with our Author, that there is in this passage a degree of obscurity and confusion, which we should not have expected from a person so much celebrated for clearness of reasoning and accuracy of distinction. Affertions and arguments are curiously blended together in one mass, that we may yield to their joint impression a conviction which would not have resulted from their separate force. No line is drawn, nor is any distinction marked out, between the temporary (or rather mil.tary) powers, intrusted to the King in time of war, as the general of his subjects, and a regular and peaceable authority to levy taxes and make laws. Yet these powers are so diftinct and separate in their natures, that the first can hardly be said to involve the last. It is true, the King may, in the moment of conqueft, grant or refuse a capitulation to the vanquished. He may put them to the sword, and seize their property, or grant them their lives, and deprive them of their property, or, in fort, impose what terms he pleases; but who does not see, that this power over the persons and property of the conquered is founded on necessity, in order to enable the conqueror to secure the advantages he has gained in the war, and to compel the enemy to accept of a reasonable peace? It appears absurd to contend, that this power should subsist any longer than the necessity from which it took its birth subfifts; that is, any longer than the war continues : For, as our Author very cogently argues,' the rights of war being founded on neceflity, the power, or prerogative of exercising those rights, that is, the prerogative of managing the war, is vested, by the laws of England, in the king alone for almost the same reason, namely, on account of the high expediency, amounting to a kind of necessity, of entrufl ing this matter to the direction of one man, arising from the extreme difficulty of carrying on the operations of the war, and of making the sudden and temporary regulations fit to be observed in conquered countries immediately upon their first submillion, by a numerous body of men, and who are not at all times assembled together, such as the parliament of Great Britain. This I conceive to be the reason why the power of making these regulations is vested in the king alone immediately upon the conquest of a country and during the remainder of the war; during all which time the inhabicants of such a country, though no longer in arms againt their conqueror, must fill be fupposed to be fecieily his enemies, and to be inclined to take the first opportunity of throwing off his authority and returning to their former masters, and are, in truth, neither more nor less than prisoners of war, whoare permitted to be at large upon their parole of honous. While this violentitate of things continues, the King continues