lic funds of the hostile government, by the law of nations, in the midst of the war, without confiscation." Doctors' Commons, Feb. 21, 1765.

(13.) The opinion of the Attorney-General, Pratt, on the question whether Guadaloupe became, in 1759, a British island.

By the book of rates, annexed to the act of tonnage and poundage, 12 Car. 2, C. 4, and several subsequent acts of parliament, the duties payable in Great Britain by British subjects upon the importation of goods, being the produce of the French plantations, are considerably higher than for the like goods if produced in the British plantations.

Case. The articles of capitulation entered into on behalf of his Majesty with the inhabitants of Guadaloupe are inclosed the seventh article, by the tenor of it, seems intended only to operate upon such duties as are payable upon the island, besides which the sixteenth and twenty-first seem to be the only articles relative to trade.

N. B.-In the year 1626, the French and English, by consent, took a joint possession of the island of St. Christopher's in America; about the time of the revolution the French drove out the English. In the year 1690, or thereabouts, the English recovered the island and had entire possession, which they continued until it was ceded to them by the peace of Utrecht in 1712.

It appears by the book of rates at the custom-house, that sugar imported into Great Britain from St. Christopher's, after the year 1690, and before the year 1712, paid the same duty as sugar imported from the British plantations.

Quare.-Is the island of Guadrloupe to be considered as a plantation or territory, to his Majesty belonging, or in his possession, within the meaning of the act of navigation, and the other laws before recited; and is, or is not, the produce thereof, when imported from thence into Great Britain, to be charged with the same duty as if it was imported from his Majesty's British plantations?

I am of opinion, from the best consideration I can give this case, that Guadaloupe must be considered as one of the British plantations; for notwithstanding the advantageous terms that are granted to the inhabitants, the island is clearly in his Majesty's possession. The inhabitants are disarmed and in a state of subjection to his Majesty and his troops; all new commissions are to be taken under his Majesty, and all acts of justice are to run in his name; he is in actual possession of all the public revenues, and all the trade of the island has changed its course, passing now in English bottoms only to Great Britain; all which particulars being considered, I must conclude that this island is now a plantation belonging to his Majesty, and in his possession, in right of the Crown of England; that it is an English and a British plantation, within the meaning and intent of the act as referred to the great objection to this opinion arises from the condition of the present inhabitants, who enjoy privileges, under the articles, hardly compatible with the state of subjects; but that has no great weight, if it be considered that these are personal privileges confined only to the present inhabitants, who are restrained from alienating to any but the King's subjects, and the capitulation is made not with the French king, but only with the inhabitants. The right of sovereignty, therefore, is

wholly changed, and the whole island is the King's acquisition by conquest. If any inhabitants should die without heirs, his lands would escheat to the King. If any of them should levy wars, or plot the King's death, they would be guilty of high treason, and to illustrate this further, if the inhabitants should agree to sell all their possessions to Englishmen, the island would immediately, without any further treaty or capitulation, become wholly English. The inhabitants plainly understood themselves transferred to his Majesty's dominions, and therefore have stipulated for the like privileges in trade as are allowed to the rest of his Majesty's subjects; and this is granted, with a proviso that they comply with the acts of trade. In a word, the condition of subjects may be better or worse in different parts; but here the question is about sovereignty, and has nothing to do with the privileges his Majesty has been pleased to grant the natives. I have had no opportunity to confer with Mr. Solicitor-General upon this point; and therefore, if we differ, I should wish to have a meeting with him, because this is a question of great consequence and concerns a multitude of people.

August 7, 1759.

C. PRATT.

(14.) The opinion of the Solicitor-General, Yorke, on the same legal topics.

I am of opinion, that Guadaloupe is to be considered as a plantation or territory belonging to the King by conquest; and I am also of opinion, that, provided the requisites of the act of navigation, and the subsequent laws relative to the same subject matter are complied with, the produce ought to be charged with the same duties as if imported from plantations originally British.

The act of navigation refers not only to the plantations and territories belonging to, or in the possession of, the crown at that time, but to future acquisitions; and the later acts, which relax or vary in some respects the provisions of it, are equally extensive. The instance of the rule observed at the custom-house as to sugars imported from St. Christopher's between 1690 and 1712 (without distinguishing between the ancient French and English divisions of the island) is in point. As to the articles of capitulation with the inhabitants, I think that question is not affected by them: the King has a right by conquest, though it is accompanied with terms. The seventh article plainly respects duties payable in Guadaloupe itself, either as a beneficial revenue to be transmitted to Europe on the King's account, or to be employed in carrying on the expenses of government in the place. And the sixteenth and twenty-first articles (as allowed by General Barrington and Commodore Moore) only stipulate for the inhabitants those privileges in trade, according to the laws of England, in which his Majesty, without any such particular stipulation, might lawfully indulge them, from the moment that they owed an allegiance as his subjects, residents in a plantation belonging to his crown.

If there are any objections against putting this conquest on the same foot, as to the duties in question, with other plantations belonging to the King, or in his Majesty's possession, they must arise from some other articles and expressions in the capitulation, tending to qualify and render incomplete the right of conquest.

But, first, it seems to me immaterial, that no actual oath of fealty or allegiance to the King is stipulated, because the conquest binds the inhabitants to such alle

giance by the law of nations. Second, Where the inhabitants stipulate a neutrality, in the fourth article, it is merely for the single purpose of not being compelled to bear arms. Third, Expressions in the fifth, seventh, and eleventh articles, where both the English officers, and French inhabitants, seem to refer to some act of cession (by way of perfecting the King's right) which may possibly be made by France to his Majesty at a future treaty of peace, are mere inaccuracies, and import no more in the view of the parties than saying, in case the island shall be retained by his Britannic Majesty, and not restored to the French King, then, &c. &c. What puts this matter out of all doubt, is, that article twelve, as perned by the inhabitants themselves, supposed that Guadaloupe may be the object of an exchange between Great Britain and France, which it could not be if it were not an absolute conquest made by the crown of Great Britain, capable of being exchanged for some other conquest made by the crown of France. And in the sixth article of the capitulation with the garrison, as prepared by the French officers, the future possible cession of the island, referred to at the making of a peace, is a cession to be made by Great Britain to France; which, in the very terms, supposes an absolute conquest. Upon the whole, I am of opinion that the island of Guadaloupe is to be considered as a plantation belonging to the King, and in his possession, within the meaning of the laws stated; and that the duties ought to be paid in England as on commodities imported from British plantations.

August 13, 1759.

C. YORKE.

(15.) The opinion of the Attorney and Solicitor-General,