trading into Hudson's Bay;" thereby distinctly recognizing the existence of such a grant, and referring to the known boundary on the south of the territories so granted.

Again, an Act was passed in the 43rd year of the reign of Geo. 3, c. 138, intituled "An Act for extending the Jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada to the Trial and Punishment of Persons guilty of Crimes and Offences within certain Parts of North America adjoining to the said Provinces ;" and this Act, having stated in the preamble that crimes committed in the Indian territories were not then cognizable by any jurisdiction whatsoever, declares that such crimes should be considered as if committed within the jurisdiction of the Canadian courts.

A doubt having arisen whether this provision extended to the territories possessed by the Hudson's Bay Company, because, although they formed part of the Indian territories, crimes therein committed could not be said not to be cognizable by any jurisdiction whatever, inasmuch as the Hudson's Bay Company had a distinct jurisdiction conferred upon it by its Charter. An Act was passed in the 1st and 2nd Geo. 4, c. 66, intituled "An Act for regulating the Fur Trade, and establishing a Commercial and Civil jurisdiction within certain Parts of North America," by which, after reciting that doubts had been entertained whether the provisions of the Act of Geo. 3 extended to the territories granted by charter to the Governor and Company of Adventurers of England trading into Hudson's Bay, and that it was expedient that such doubts should be removed, and the said Act should be further extended, it was declared and enacted, that the provisions of the Act of 43 Geo. 3 should be deemed and construed, "to extend to and over, and to be in full force in and through all the territories theretofore granted to the Hudson's Bay Company," thus again distinctly recognizing the existence of the grant of the soil, as well as the jurisdiction; for the Act contains an express reservation that nothing therein contained should affect the rights, privileges, authority or jurisdiction of the Hudson's Bay Company; and, in consequence, from that period, the Com pany and the Canadian Courts have exercised a concurrent jurisdiction as to offences committed within the territories of the Company. By this Act also, power was given to the Crown to make, grant, or give licenses for the exclusive privilege of trading with the Indians in all such parts of North America as should be specified in any such grants or licenses not being part of the land and territories granted to the Governor and Company of Adventurers of England trading to Hudson's Bay, and not being part of any of the Crown provinces in North America, or of any lands or territories belonging to the United States of America.

By virtue of licenses granted under the powers of this Act, the Company are entitled to certain exclusive rights of trading beyond the limits of their own territories; but this Act is referred to here as distinctly recognizing the rights of the Company to exclusive trade within their own territories.

With regard to taxation and government, the Company under their Charter, are invested with power 66 to make, ordain and constitute such and so many reasonable laws, constitutions, orders and ordinances as to them, or the greater part of them, being then and there present, shall seem necessary and convenient for the good government of the said Company, and of all governors of colonies, forts and plantations, factors, masters, mariners and other officers employed or to be employed in any of the territories and lands aforesaid, and in any of their voyages; and for the better advancement and continuance of the said trade or traffic and plantations, and the same laws, constitutions, orders and ordinances so made, to put in, use and execute accordingly, and at their pleasure to revoke and alter the same or any of them, as the occasion shall require: And it is provided that the said Governor and Company, so often as they shall make, ordain or establish any such laws, constitutions, orders and ordinances, in such form as aforesaid, shall and may lawfully impose, ordain, limit and provide such pains, penalties and punishment upon all offenders, contrary to such laws, constitutions, orders and ordinances, or any of them, as to the said Governor and Company for the time being, or the greater part of them, then and there being present (the said Governor or his Deputy being always one), shall seem necessary, requisite or convenient for the observation of the same laws, constitutions, orders and ordinances; and the same fines and amerciaments shall and may, by their officers and servants from time to time to be appointed for that purpose, levy, take and have, to the use of the said Governor and Company, and their successors, without the impediment of us, our heirs or successors, or of any of the officers or min

isters of us, our heirs or successors, and without any account therefore to us, our heirs or successors to be made, so always as the said laws, constitutions, orders and ordinances, fines and amerciaments, be reasonable, and not contrary or repugnant, but as near as may be agreeable to the laws, statutes or customs of this our realm." And it is further provided, "that all lands, islands, territories, plantations, forts, fortifications, factories or colonies, where the said Company's factories and trade are or shall be, within any ports or places afore limited, shall be immediately and from henceforth under the power and command of the said Governor and Company, their successors and assigns; and the said Governor and Company are empowered to appoint and establish Governors and all other officers to govern them." And it is provided, "that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, fortifications, colonies or places of trade within any of the countries, lands or territories hereby granted, may have power to judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this Kingdom, and to execute justice accordingly; and in case any crime or misdemeanour shall be committed in any of the said Company's plantations, forts, factories, or places of trade within the limits of the aforesaid, where judicature cannot be executed for want of a Governor and Council there, then in such case it shall and may be lawful for the chief Factor of that place and his Council to transmit the party, together with the offence, to such other plantation, factory or fort where there shall be a Governor and Council, where justice may be executed, or into this kingdom of England, as shall be thought most convenient, there to receive such punishment as the nature of his offences shall deserve."

In pursuance of the authority thus given, the Company have invariably exercised all the power of government necessary for the administration of justice in their territory, and for that purpose have appointed proper officers, who have acted judicially in all matters arising therein.

As already observed, the Canadian Courts have now a concurrent jurisdiction with the Company.

It may be right here to refer to several Acts of the Legislature which have recognized the general rights and privileges claimed and exercised by the Company:

An Act passed in the sixth year of the reign of Queen Anne, c. 37, intituled, "An Act for the Encouragement of the Trade to America," and this Act contains an express proviso, that "nothing therein contained shall extend or be construed to take away or prejudice any of the estates, rights or privileges of or belonging to the Governor and Company of Adventurers trading into Hudson's Bay."

In like manner, in 1745, when an Act was passed (18 Geo. 2, c. 17), for granting a reward for the discovery of a north-west passage through Hudson's Straits, it was expressly provided that "nothing therein contained should extend or be construed to take away or prejudice any of the estates, rights or privileges of or belonging to the Hudson's Bay Company."

No exact system of taxation has been claimed or exercised by the Company, and until a colony of resident settlers was established other than the Company's own servants, the Company defrayed the whole expenses of the government of their territories without the aid of any contribution whatever; but since a colony was formed, it has been made a stipulation with the community, upon their becoming settlers, and receiving parcels of land, that they should contribute towards the expenses of the Government of the colony; but the main charge has continued to be borne by the Company.

XV.

Miscellaneous Documents.

RIGHTS OF POSTLIMINY.

THE DUKE OF YORK'S PATENT OF THE LANDS AND RIVERS FROM THE WEST SIDE OF THE CONNECTICUT RIVER TO THE EAST SIDE OF DELAWARE BAY, &C., 12TH MARCH, 1664.

By the Treaty of Westminster the United Provinces relinquished their conquest of New Netherland to the King of England. The Sovereign Dutch States-General had treated directly with Charles as Sovereign. A question at once arose at Whitehall about the subordinate interest of the Duke of York. It was claimed by some that James's former American proprietorship was revived. Yet while the Treaty of Westminster re-established the articles of capitulation agreed to by Nicolls and Stuyvesant, who represented their sovereigns in 1664, it did not cure the imperfections, subject to which the Duke had for nine years governed his American Province. James's patent had been sealed while the Dutch were in quiet possession of New Netherland, and no new grant was made to him after the Treaty of Breda, which confirmed to the English king his conquest of the Dutch province. Eminent lawyers "very justly questioned" the Duke's pretension to the territory which England had recently recovered, because its cession to her sovereign by the Dutch Government "had given no strength to original defects." James was now obliged to give up the claim of English right which he and his brother had formerly maintained. Moreover, the Duke wished to regain New Jersey which he had foolishly squandered on Berkeley and Carteret. Besides, the boundary agreement with Connecticut, which had been ratified by the Crown or by himself, was a sore point. The opinion of counsel having been taken, they advised that the Duke's proprietorship had been extinguished by the Dutch conquest, and that the King was alone seized of New Netherland, by virtue of the Treaty of Westminster. The "Jus Postliminii" did not obtain in New York.

A new patent to the Duke of York was therefore sealed [on the 29th June, 1674]. By it the King again conveyed to his brother the territories he had held before, and granted him anew the absolute powers of government he had formerly enjoyed over British subjects, with the like additional authority over "any other person or persons" inhabiting his province. Under the same description of boundaries, New Jersey, and all the territory west of the Connecticut River, together with Long Island and the adjacent islands, and the region of Pemaquid, were again included in the grant. The new patent did not, as has been commonly, but erroneously stated, "recite and confirm the former." It did not in any way allude to that instrument. It read as if no previous English patent had ever existed. It was a second grant, in almost the same terms with the first, and it conveyed to the Duke, ostensibly for the first time, a territory which the Dutch Government, after conquering and holding had by treaty "restored to His Majesty." *

*

*

One of the motives to the Duke of York's second patent was the peculiar condition of New Jersey. James considered that his former release of that region to Berkeley and Carteret was annulled by the Dutch conquest-just as his own grant from the King had been. But both his grantees were old courtiers, and more than his match where their own interests were at stake. They played their own separate games, and eventually they beat the Duke.*

[The Duke of York, on the 29th July, 1674, made a new patent to Sir Geo. Carteret, of the land westward of Long Island, and Manhattas Island, and bounded on the east, part

by the main sea and part by the Hudson's River, and extending southward as far as a certain creek called Barnegat, and bounded on the west in a straight line from Barnegat Creek to a creek called Rankokus Kill, in Delaware River, and from thence up the said Delaware River to the northermost branch thereof, which is in latitude 41° 40', and thence in a straight line to Hudson's River in 41° of latitude. The second grant of the Duke to Sir Geo. Carteret did not give any powers of government, but Sir Geo. Carteret stood in much the same position towards the Dutch conquerers that the Duke did himself, and his title, like the Duke's, was subject to extinguishment by the conquest. There was another ground for granting a second patent: the country not being in possession of the King, but in the possession of Holland at the time the first patent was granted, nothing was conveyed by it, and upon this ground a second patent became necessary.]

King Charles II. having granted what is now the States of New York, New Jersey, and Delaware, to the Duke of York, he sent an armament in 1664 to wrest it from the Dutch. After reducing New York the squadron proceeded to the settlements on the Delaware, which immediately submitted. In the same year the Duke conveyed that portion of his grant lying between the Hudson and Delaware Rivers to Lord Berkeley and Sir Geo. Carteret. The tract was called New Jersey. The two proprietors formed a constitution for the colony, securing equal privileges and liberty of conscience to all. . A few years afterwards the repose of the colony began to be disturbed by domestic disputes; some of the inhabitants, having purchased their lands of the Indians previous to the conveyance from the Duke, refused to pay rent to the proprietors. . . . In 1672 an insurrection took place ; the people assumed the government and chose a Governor. The former Governor returned to England and obtained from the proprietors such favourable concessions and promises as quieted the people and induced them again to submit to his authority.

Lord Berkeley disposed of his property, rights and privileges in the territory to Edward Billinge; and he being enveloped in debt, consented that they should be sold for the benefit of his creditors. William Penn, Gawen Lawrie, and Nicholas Lucas, were appointed trustees for that purpose. In 1676, the trustees and Sir Geo. Carteret made partition of the territory, they taking the western and he the eastern portion.

West Jersey was then divided into one hundred shares, which were separately sold. Some of the purchasers emigrated to the country, and all made great exertions to promote its population. Possessing the powers of government as well as the right of soil, they formed a constitution, in which, for the encouragement of emigrants, they secured for them ample privileges.

But previous to the transfer from Berkeley to Billinge, the Dutch being at war with England, reconquered the country and retained it, until 1674, when it was restored by treaty. A new patent was then granted to the Duke, including the same territory as the former. In 1678, Sir Edmund Andros who had been appointed the sole Governor in America, claimed jurisdiction over the Jerseys, insisting that the conquest by the Dutch divested the proprietors of all their rights.

He forcibly seized, transported to New York, and there imprisoned those magistrates who refused to acknowledge his authority. He imposed a duty on all goods imported, and upon the property of all who came to settle in the country. Of this injustice the inhabitants loudly complained to the Duke; and at length their repeated remonstrances constrained him to refer the matter to Commissioners.

Before them the proprietors appeared, In strong language they asserted, and by strong arguments supported their claims to the privileges of freemen. They represented that the King had granted to the Duke the right of government as well as the right of soil. That the Duke had transferred the same rights to Berkeley and Carteret, and they to the present proprietors. [That is, under the first grant. Under the second grant the Duke withheld the rights of Government, and granted only property in the soil.]

"That only," they added, could have induced us to purchase lands and emigrate. And the reason is plain, to all prudent men, the Government of any place is more inviting than the soil; for what is good land without good laws? What but an assurance that we should enjoy civil law, religious privileges, could have tempted us to leave a cultivated country and resort to a gloomy wilderness? What have we gained, if after adventuring in the wilderness many

thousands of pounds, we are yet free to be taxed at the mere will and pleasure of another? What is it but to say, that people free by law under any prince at home, are at his mercy in plantations abroad?

"We humbly say, that we have lost none of our liberty by leaving our country; that the duty imposed on us is without precedent or parallel; that, had we foreseen it, we should have preferred any other plantation in America. Besides, there is no limit to this power; since we are, by this precedent, taxed without any law, and thereby excluded from our English right of assenting to taxes. What security have we of anything we possess? We can call nothing our own, bnt are tenants at will, not only for the soil, but for our personal estates. Such conduct has destroyed governments, but never raised one to any true greatness." The Commissioners adjudged the duties illegal and oppressive, and they were not afterwards demanded.*

In following the course of the law of nations, this Court has declared that even in cases of conquest, the conqueror does no more than displace the sovereign and assume dominion over the country. (1 Pet. Rep. 86.)

A cession of territory is never understood to be a cession of the property of the inhabitants. The King cedes only that which belongs to him; lands he had previously granted were not his to cede. Neither party could so understand the treaty. Neither party could consider itself as attempting a wrong to individuals condemned by the whole civilized world. The cession of a territory would be necessarily understood to pass the sovereignty only, and not to interfere with private property. (Ib. 87.)

No construction of a treaty which would impair that security to private property which the laws and usages of nations would without express stipulation have conferred, would seem to be admissible, further than its positive words require. Without it the title of individuals would remain as valid under the new Government as they were under the old; and these titles, at least as far as they were consummate, might be asserted in the Courts of the United States, independently of this article. (Ib. 88.)+

Such is the difference of the rule as between the Rights of the Great Corporations and ordinary private holders.

SHOULD THE OBJECT OF VOYAGES BE TAKEN INTO ACCOUNT?

THE FRENCH VIEW.

Memoir of the French Commissioners, October 4, 1751, in reply to the Memoirs of the Commissioners of His Britannic Majesty of the 21st September, 1750, and the 11th January, 1751:

A distinction ought to be made between the voyages that have been directed towards the continent of North America, with the design of making plantations and establishing colonies, and those which have not been undertaken with this view; and among the latter, those which were confined to simple attempts which proved unproductive, with those which have been followed by the formation of solid establishments, actually existing, or which would have subsisted if some European power had not destroyed them.

THE ENGLISH VIEW.

Memorial presented by His Majesty's Commissaires to the Commissaires of His Most Christian Majesty, in reply to their Memorial of the 4th October, 1751, concerning Nova Scotia or Acadia:

The French Commissaires, in the two first articles of their Memorial, have given an

*Hales' History of the United States, pp. 84-86.

+ Also, passient, Pet. S. C. Rep. 6, 741-2; 9, 133; 10, 720, 729-30; 12, 438, Strother v. Lucas.