with repaid to him by the said Thomas Lechmere; and that the suit brought by the said Thomas Lechmere and Anne his wife, on which the said sentences were made, be and they are hereby dismissed; and that all acts and proceedings done and had under the said sentences, all, every, or any of them, or by virtue or pretence thereof, be and they are hereby discharged and set aside and declared null and void. And his Majesty is further pleased to declare, that the aforementioned Act of Assembly passed in May, 1726, empowering the said Thomas Lechmere to sell the said lands, is null and void; and also that the said order made by the said Superior Court, and bearing date the 27th of September, 1726, pursuant to the said Act of Assembly allowing the said Lechmere to sell of the said real estate to the value of ninety pounds current money there for his charges, and three hundred and eighteen pounds silver money, is likewise null and void; and the said Act of Assembly and order of the said Superior Court are accordingly hereby declared null and void, and of no force or effect whatever. And his Majesty doth hereby likewise further order, that the petitioner be immediately restored and put into the full, peaceable, and quiet possession of all such parts of the said real estate as may have been taken from him, under pretence of or by virtue or color of the said sentences, orders, acts, and proceedings, or any of them; and that the said Thomas Lechmere do account for and pay to the said petitioner the rents and profits thereof, and of every part thereof, received by him, or any one under him, for and during the time of such his unjust detention thereof. And the Governor and Company of his Majesty's Colony of Connecticut for the time being, and all other officers and persons whatsoever whom it may concern, are to take notice of his Majesty's royal pleasure hereby signified, and yield due obedience to every particular part thereof, as they will answer the contrary at their peril." 1

1 Coxe (Judic. Power, 212) expresses the opinion that this decree, in so far as it dealt with the Intestates' Act, was a legislative, and not a judicial proceeding; he concedes that in other respects it was judicial. As authority for this view, he refers to the fact that in a subsequent order in council of April 10, 1730, it is expressly called 'a repeal' of that Act;" and he cites 4 Collections Conn. Hist. Soc. 201. This may well be doubted. The proceedings, given above in the text, speak for themselves. As regards the order of 1730, the passage cited by Coxe occurs in a recital of the petition of the Connecticut Commissioners, "humbly praying that notwithstanding the said Act is repealed," &c. The language of the Committee of the Council itself (p. 202) is different; it runs thus: " 'His Majesty was pleased to declare an Act. to be null and void."

It may be added that Winthrop, in a counter petition to the Committee of the Council, on occasion of the proceedings of 1730 (4 Conn. Hist. Soc. Coll. 393), uses the following language as regards the former case : —

"This Act being for the reasons above mentioned, in its own nature null, void, and repugnant to the very powers granted by King Charles the Second, it is a gross mistake in the petitioners to allege that the same was annulled by his Majesty's order in Council of the 5th [15th] of February, 1727. Whereas his Majesty did, upon counsel heard on both sides thereof, only relieve your memorialist as a subject and an inhabitant of the Province of Connecticut, who resorted to his royal justice for relief against

THIS case was very elaborately argued four several times; and now on this day LORD MANSFIELD stated the case, and delivered the unanimous opinion of the court, as follows:

This is an action that was brought by the plaintiff, James Campbell, who is a natural-born subject of this kingdom, and who, upon the 3d of March, 1763, purchased a plantation in the island of Grenada: and it is brought against the defendant, William Hall, who was a collector for his Majesty of a duty of four and an half per cent upon all goods and sugars exported from the island of Grenada. And the action is brought to recover back a sum of money which was paid, as this duty of four and an half per cent, upon sugars that were exported from the island of Grenada, by and on account of the plaintiff. The action is an action for money had and received; and it is brought upon this ground; namely, that the money was paid to the defendant without any consideration; the duty, for which, and in respect of which he received it, not having been imposed by lawful or sufficient authority to warrant the same. It is stated by the special verdict, that that money still remains in the hands of the defendant, not paid over by him to the use of the king, but continued in his hands, and so continues with the privity and consent of his Majesty's Attorney-General, for the express purpose of trying the question as to the validity of imposing this duty.

It came on to be tried at Guildhall, and of course, from the nature of the question, both sides came prepared to have a special verdict; and a special verdict was found, which states as follows.

That the island of Grenada was taken by the British arms, in open war, from the French king.

That the island of Grenada surrendered upon capitulation, and that the capitulation on which it surrendered, was by reference to the capitulation upon which the island of Martinique had before surrendered.

The special verdict then states some articles of the capitulation, and particularly the 5th article, by which it is agreed, that Grenada should continue to be governed by its present laws until his Majesty's further pleasure be known. It next states the 6th article; where, to a dethe oppression of a Court of Probates acting without any legal jurisdiction, under the pretended authority of an Act of Assembly, which being contrary to law and to their charter was in itself void and null, even before his Majesty for the future information of his Majesty's subjects in Connecticut was graciously pleased to declare it so."

This seems to be a just exposition of the nature of the decree in Winthrop . Lechmere. The word "annulling," however, is often used to-day to describe the effect of judicial action in such cases, -as the equivalent of the phrase declaring null and

void. - ED.

mand of the inhabitants of Grenada, requiring that they should be maintained in their property and effects, movable and immovable, of what nature soever, and that they should be preserved in their privileges, rights, honors, and exemptions; the answer is, the inhabitants, being subjects of Great Britain, will enjoy their properties and privileges in like manner as the other his Majesty's subjects in the other British Leeward Islands: so that the answer is, that they will have the consequences of their being subjects, and that they will be as much subjects as any of the other Leeward Islands.

Then it states another article of the capitulation; viz., the 7th article, by which they demand, that they shall pay no other duties than what they before paid to the French king; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the administration of government, should be paid out of the king's demesne in answer to which they are referred to the answer I have stated, as given to the foregoing article; that is, being subjects they will be entitled in like manner as the other his Majesty's subjects in the British Leeward Islands.

The next thing stated in the special verdict is, the treaty of peace signed the 10th February, 1763; and it states that part of the treaty of peace by which the island of Grenada is ceded, and some clauses which are not at all material for me to state.

The next instrument is a proclamation under the great seal, bearing date the 7th of October, 1763, wherein amongst other things it is said as follows:

Whereas it will greatly contribute to the speedy settling our said governments, of which the island of Grenada is one, that our loving subjects should be informed of our paternal care for the security of the liberties and properties of those who are and shall become inhabitants thereof: we have thought fit to publish and declare by this our proclamation, that we have in our letters-patent under our great seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of the said colonies respectively, that so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies, within the said governments respectively, in such manner and form as is used and directed in those colonies and provinces of America which are already under our immediate government; and we have also given power to the said governors, with the consent of our said councils, and the representatives of the people to be summoned as aforesaid, to make, constitute, and ordain laws, statutes, and ordinances, for the public peace, welfare, and good government of our said colonies and the inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in our other colonies.

The next instrument stated in the special verdict, is the letters-patent

under the great seal, or rather a proclamation, bearing date the 26th March, 1764; wherein, the king recites a survey and division of the ceded islands, and that he had ordered them to be divided into allotments, as an invitation to purchasers to come in and purchase upon the terms and conditions specified in that proclamation.

The next instrument stated, is the letters-patent under the great seal, bearing date the 9th of April, 1764. In these letters there is a commission appointing General Melville governor, with a power to summon an assembly as soon as the state and circumstances of the island would admit, and to make laws with consent of the governor and council, with reference to the manner of the other assemblies of the king's provinces in America. This instrument is dated the 9th of April, 1764. The governor arrived in Grenada on the 14th December, 1764, and before the end of the year 1765, an assembly actually met in the island of Grenada. But before the arrival of the governor at Grenada, indeed before his departure from London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters-patent under the great seal, bearing date the 20th July, 1764. Wherein, the king reciting, that whereas, in Barbadoes, and in all the British Leeward Islands, there was a duty of four and an half per cent upon all sugars, &c., exported; and reciting in these words; that whereas it is reasonable and expedient, and of importance to our other sugar islands, that the like duty should take place in our said island of Grenada; proceeds thus: We have thought fit, and our royal will and pleasure is, and we do hereby, by virtue of our prerogative royal, order, direct, and appoint, that from and after the 29th day of September next ensuing the date of these presents, a duty or impost of four and an half per cent in specic shall be raised and paid to us, our heirs and successors, upon all dead commodities, the growth and produce of our said island of Grenada, that shall be shipped off from the same, in lieu of all customs and import duties, hitherto collected upon goods imported and exported into and out of the said island, under the authority of his most Christian Majesty.

The special verdict then states that in fact this duty of four and an half per cent is paid in all the British Leeward Islands, and sets forth the several Acts of Assembly relative to these duties. They are public Acts: therefore. I shall not state them. as any gentleman may have access to them; they depend upon different circumstances and occasions, but are all referable to those duties in our islands. This, with what I set out with in the opening, is the whole of the special verdict that is material to the question.

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 great deal has been said, and many authorities cited, relative to propositions, in which both sides seem to be perfectly agreed; and which, indeed, are too clear to be controverted. The stating some of

those propositions which we think quite clear, will lead us to see with greater perspicuity, what is the question upon the first point, and upon what hinge it turns. I will state the propositions at large, and the first is this:

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.

The 2d is, That the conquered inhabitants once received under the king's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens.

The 3d, That the articles of capitulation upon which the country is surrendered, and the articles of peace by which it is ceded, are sacred and inviolable according to their true intent and meaning.

The 4th, That the law and legislative government of every dominion equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives.

The 5th, That the laws of a conquered country continue in force until they are altered by the conqueror: the absurd exception as to Pagans, mentioned in Calvin's Case, shows the universality and antiquity of the maxim. For that distinction could not exist before the Christian era; and in all probability arose from the mad enthusiasm of the Croisades. In the present case the capitulation expressly provides and agrees, that they shall continue to be governed by their own laws, until his Majesty's further pleasure be known.

The 6th and last proposition is, that 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.