This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. Google" books https://books.google.com Digitized by Google Digitized by Google Digitized by Google OPINIONS or EMINENT LAWYERS, ON VARIOUS POINTS OF ENGLISH JURISPRUDENCE. . lie, in 1780; and I was thus induced to take copies of such law opinions, as appeared, in the course of my researches. Those copies swelled, during my progress, to a bundle; and, it seemed to me, that if they were digested under heads, they might somewhat supply the juridical defects, which have been already intimated, rather than’shown. It became, at length, known, that I had made such collections of law opinions: and professional gentlemen, setting out, to the west, and to the east, to execute various offices in the juridical departments, desired to derive some rays of knowledge, from the deliberate opinions of their elders, who had risen to eminence, as much by their integrity, as their talents. Such a limited use of such opinions, was said to be penurious; and, I was urged to send my collections to the press, as the properest mode of making such lore useful to the many, as well as to the few: it was, indeed, apparent, that sueh docu- Digitized by GooQle THE PREFACE. ill ments, lying separated in different depositories, and obscured, by meaner matters, were of very little value, and of less instruction to the governors, as they had always been to the governed: the very departments of state, which possessed such unknown treasures, could neither be much wiser, for their unconscious possession, nor in any manner regulated in their practice, by unknown precedents? Idem est non esse et non apparere was a maxim very applicable to the statesmen, who filled those departments, and could not pursue any settled policy, by those beacons, which had lighted their predecessors, on their official course. Owing to all those considerations, I have been induced, at the end of many years, to give publicity to those juridical opinions, in the hope of doing some good, by their publication, while no object of any use can be gained, by their concealment. Those opinions will do honour to the lawyers, who gave them, not only as they display a perfect knowledge of the several subjects, but evince a deliberation, and candour, which areequal to their skill. Those opinions, were often given, after seeing agents, and hearing counsel, and sometimes delivered, with many qualified* b2 Digitized by Google iv THE PREFACE. tions, when the cases were either imperfectly stated, or the facts uncircumstantially understood. On perusing the following opinions, the more judicious reader will be apt to cry out, No country enjoys such a college of civilians, us the prerogative court supplies: .neither Greece, nor Rome, in their best days, produced such municipal lawyers; as have illuminated this nation, by their learning; ani-' mated the people, by their eloquence; and dignified their profession, by their probity. It has been my endeavour to arrange the follow* ing opinions, according to my limited notions of a just analogy; and, when it is recollected, that so great a jurist, as sir Matthew Hale, acknowledged his inability to reduce his analysis of the leno to an exact logical method, censoriousness may, per* haps, think with less severity of my unskilfulness. This multifarious subject may be properly digested under the following heads:— First, The king’s prerogative abroad: I. Of his ecclesiastical authority: ' ' II. Of his civil authority:—This last may be again subdivided into four divisions# (1.) The . king’s rights; (2.) The king’s power of taxation Digitized by knOOQle THE PREFACE. V wev conquests ; (3.) The king’s grants; (4.) An anomalous exclusion of the king’s prerogative, in the appointment to one office. . Secondly^ Of the Icings general jurisdiction, abroad. Thirdly, How far the king’s subjects, who emigrate, carry with them the English law: I. The common law: II. The statute law. Fourthly, Of the colonial constitutions'.—This head may be subdivided into six divisions: I. Of the governor; II. Of the kings council: III. Of the representative assembly: IV. Of the want of sovereignty, in the colonial legislatures; V. Of the various modifications, which the constituted assembly admits : VI. Ofthe colonial judicatures. Fifthly, Of the admiralty jurisdictions. Sixthly, Of the nationalfisheries^ Seventhly, Of commerce :-—This head may be subdivided into four divisions: I. Manufactures set up abroad: Digitized by knOOQle vi THE TREF ACE. II. The acts of navigation: - III. Miscellaneous matters of trade: IV. Of coins. Eighthly, Of the law of nations .——This head may be subdivided into two divisions: . I. Treaties: II. The legal effects, arising from the direct independence of the United States. Superior to all those colonial jurisdictions was the king, in his council, at Whitehall. During the first age of the colonies, from 1606 to 1040, the whole superintendence of the' king was exercised, both executively, and legislatively, by the privy council. ’ ' An age of innovation and reform now began: and the jurisdiction of the privy council, within the realm, as to persons; and property, was regulated by parliament *. But, whatever may have been taken away, at the sad commencement of the civil wars, was assumed by the parliament, which exerted every act of * 16 Ch. I. ch. 10; i. Blacks. Com. 230-1. Digitized by knOOQle THE PREFACE. Vli sovereignty over the colonies*. When the monarchy was reestablished, in 1660, the king’s ancient jurisdiction over the transatlantic colonies was restored with the king’s government But the plantations had now, by many accessions, grown into bulk: and the king’s superintendence became still more necessary, and frequent, for preserving the sovereignty of the crown, and the subordination of the colonies. A council of trade, and plantations, was now established; consisting of an indefinite number of respectable persons, who were not, however, members of the privy council. Of that council of trade was sir Josiah Child, who was then a brewer, in Southwark; and is still remembered, for the solid sense of his commercial treatises. This council was abolished on the 12th of March, 1574-5, when the whole affairs of trade, and colonies, were placed, by the king’s declaration, in council, under the jurisdiction of a committee of the privy council, which, during the various changes of varying times, still retained its colonial authority of ancient times. ■ « 8ee the several acts, in Scobbeil, which are the prototypes of the acts of navigation. ' ed by <^005 viii THE PREFACE. The distresses, both of our commerce, and our colonies, during the revolution’ war, created discontent : and this discontent, and those distresses, produced outcries, and complaints, which predisposed the nation, for some change: such, then, was the origin of the board of trade and plantation^ during the year 1696. By a commission, under the great seal, a nobleman for president, and several gentlemen, who were eminent for their knowledge of commerce, and of colonies, were appointed, with various powers, for superintending, and promoting both *. During many years, their superintendence over the plantations was vigilant, and incessant : * The plan of the board of trade, during the reigns of king William, and queen Anne, seems to have been, to appoint two noblemen, and eight commoners, as commissioners, for executing the two great objects of the commission, the promoting of trade, and the superintending of the plantations. The members of the first board were, John, earl of Bridgewater, Ford, earl of Tankerville, sir Philip Meadows, who wrote “ Observations, concerning the Sovereignty of the Seas;” William Blaith* wayt, who had been secretary of the old council, of trade and plantations, and died auditor of the colonial revenue; John Palexfen, the chief justice’s brother, and a merchant in the city, who published a tract on trader the well known John Locke, who Digitized by Google THE PREFACE. IX but, what such a board could do, for promoting commerce, or fisheries, more than removing obstructions out of the way, by their advice, and aid, it is not easy to tell. They were either useful, or useless, like other establishments, according to the use that was made of them. If a conceited, meddling, forward person happened to bear sway as secretary of state, he deprived the board of its jurisdiction, and usefulness: if a person of consequence, and talents, happened to preside, at such a board, it became extremely advantageous to the state, by investigating colonial titles, and complaints, by assisting negociators, with their informations, and advices, in addition to the usual occupations of such a department. The first commission specially recommended to the attention of the board, one of the most difficult of subjects, the poor, the poor-rates, the poor-laws ; a subject of such compli- wrote on the coinage; Abraham Hill, whose collections on trade and colonies are in the British Museum; and John Methuen, who, from 16go, represented the Devizes, in parliament: 'he was sent to Portugal, as ambassador extraordinary, for the special purpose of making the commercial treaty, dated the 27th of December 1709: he died about the year 1705. The board of trade was a proper nursery of such ministers. Digitized by knOOQle 5? THE PKEPACE. cation, as baffled the united laboursofthe ten commissioners, and seems to defy thewisdom of parliament. It was probably intended, that the board of trade should have power to administer an oath: and the solicitor-general, Thomson, gave his opinion to this effect: Sir. , In obedience to the commands of the lords corn* missioners for trade and plantations, signified by yours of the fifth instant, I am of opinion, that the clause in the commission, which is under the great seal, does empower the commissioners, or any three of them, to administer an oath, to witnesses, who shall come before them to be examined, touching any matter mentioned in the commission, to which that power does relate. Wm. Popple, esq. I am, &c. - Feb. 6, 1719-90. Wm. Thompson, By a special clause of the first commission, the board was empowered to call for the advice and aid of the attorney, and solicitor-general *. The following opinions will show, that soon after the * The law officers were each allowed a standing fee of a hundred guineas, with ten guineas to each of their clerks. Digitized by knOOQle THE PREFACE. XI revolution, the ministry called upon the lord chief justice Holt, for his advice; but he does not appear, when acting, in this character of adviser, in his best light. The whole judges were called upon, soon after the same epoch, to give their advice, as to the legality of the assiento trade, though it must have been the magnitude of the object, more than its difficulty, which required such mighty knowledge, as the lights of Westminster-hall enjoyed, to see, that such a trade, with the Spanish colonies, in Spanish ships, was inconsistent with the acts of navigation. When treaties of commerce were in contemplation, during the year 1709, the board of trade was empowered to call in the aid of the king’s advocate general. The following opinions show several instances of the joint advice of the advocate, the attorney, and solicitor-general, which was asked, and received, by the king’s ministers: what other country can boast of jurists, with such extent of knowledge, and reach of thought, as such joint advice exhibits I Soon after the aceession of George I. the acts of the colonial assemblies, which were to be reviewed, Digitized by knOOQle Xli THE PREFACE. became extremely voluminous; the standing fee of a hundred guineas had ceased to be any object to the attorney, and solicitor-general: and it became apparent, that advice was at length asked on particular business of such magnitude, as a fee of a hundred guineas was quite unequal to the affairs, and income, of the law-officers of the crown, from other sources. Thus, the progress of business led on to the special appointment of one of the king’s learned counsel, to attend to the law affairs of this colonial department. The first counsel, who was thus assigned to the board of trade, in April 1718, was Richard West, who had distinguished'himself, by publishing “ An inquiry into the manner of creating peers ;M and represented, in parliament, successively. Grampound, and Bodmin. He was allowed a special salary of three hundred pounds a year. The advocate, the attorney, and solicitor-general, continued to be consulted, on particular occasions, and were paid the accustomed fees, for such applications. In June 1725, Mr. West was appointed chancellor of Ireland: .but he unhappily died at Dublin, in December 1726; leaving a son, who distinguished Digitized by GooQle THE PREFACE, t xiii himself, as the correspondent, and friend of Gray} the poet. . . , Francis Fane, of the Inner Temple, a relation, of the earl of Westmorland, the president of the board of trade, was immediately appointed, as the sue* eessor of Mr. West} in June 1725.. He continued to represent in Parliament,. either Taunton, or Petersfield; and to act, as learned counsel to this establishment, which required so much legal assistance, .till Noyember, 1746, when he was appointed a member of the board. ... After this long service, he was immediately sue* ceeded by Matthew Lamb, the representative in parliament for Stockbridge. He was.created a baronet in January 1755, and be continued a re* _ presentative in parliament for Peterborough, as well as the learned counsel to the board of trade, till his decease, on the 6th of November, 1768:. his son, sir Peniston, was created a peer of Ireland, on the 2d of May, 1770. It is unnecessary to tell, who were the law officers of the crown, that gave special opinions to the board, while Mr. Fane, and sir Matthew Lamb, acted as law counsellors to that establishment: the world has seldom seen such a Digitized by VnOC xht THE PREFACE. succession of jurists, whether we regard their knowledge, their temper, or their integrity. ' At a very critical moment of colonial affairs, this important office of law adviser to the board of trade remained undisposed of, during several years of great colonial perturbation: at length, on the 30th of April, 1770, Richard Jackson, one of the king’s learned counsel, was appointed to this trust, which this accomplished lawyer very sufficiently discharged till the abolition of the board, at the same epoch, which saw thirteen revolted colonies acknowledged to be sovereign states. By the same statesman, who advised that acknowledgment, Mr. Jackson was appointed a commissioner of the treasury, though his omniscience could not prevent the fall of the minister, who mortified the nation, by his prejudices, and injured it, by his projects. Mr. Jackson died on the 6th of May, 1787, leaving a very ample fortune to his two sisters: at the time of his decease, he was one of the king’s learned counsel, a member of parliament, and. a fellow of the royal, and antiquary societies. The first shock which the board of trade had to Digitized by knOOQle THE PREFACE* XV sustain, was given by the inconsiderate hand of the earl of Shelburne, when he was appointed secretary of state, on the 23d of May, 1766. The correspondence, and the patronage, which the board had long enjoyed, was now resumed, and they were informed, from authority, “ that the commissioners were, in future, to act as a board of advice and counsel, upon such points only, as should be referred from the privy council, or secretary of state*.” The authority of parliament had been recently shaken, by the repeal of the stamp act; and the commission for plantation affairs, which had knowledge, and experience, and energy, was thus reduced to a board of reference. When the repeal beforementioned did not procure acquiescence, and the shock, which had been ^iven to the board, did not enforce respect, very different measures were adopted. A secretary of state for tbe colonies was created, and in July, 1768, the board was restored to the authority, and practice, which it eiyoyed, and used, “ antecedent to the date of the said letter of the 26th of August, ■ * Lord Shelburne’s letter of the 26th of August, lpd& Digitized by knOOQle XVi THE PREFACE* 1766 *.” The colonial secretary was, thenceforth^ directed to be a constituent member of the board; but the past could not be recalled, while little souls on little shifts relied. • None of the statesmen of that period, nor those of the preceding, or subsequent times, had any suspicion, that there lay among the documents, in the board of trade, and paper office, the most satisfactory proofs, from the epoch of the revolution, in 1688, throughout every reign, and during every administration, of the settled purpose of the revolted /colonies, to acquire direct independence: those shifts of policy only strengthened the previous design^ which had so long been entertained, of. acquiring positive sovereignty; yet was not such a design believed, by little souls, even after that long meditated event had occurred, by the positive declaration of it, in 1776. The subsequent struggles of inefficient shifts, at whatever expense of many millions, and much bloodshed, only led on to that avowed acknowledgment of real sovereignty, which was tan* * Lord Hillsborough’s official communication, dated the Sth of July, 1768. Digitized by CiOOQle THE PREFACE. Xvii diiy given, in 1782. At the same epoch,the statesman, whose eloquence, and efforts, had so efficaciously contributed to that event, moved for the; law, which abolished the board of trade *. Lord. Shelburne, as secretary of state, again held the ominous pen, which, on the 2d of August, 1782, even months before the act had passed, communicated to the several members of the commission the deadly tidings, that the king had no further oc-. casion for their commercial, or colonial services^ yet, a peace was still to be made with the United States, with France, with Spain, and with Holland* Lord Shelburne lived to hear, in parliament, that the peace of 1783, was unsatisfactory. . . . Acquiescence, in what cannot be remedied, is one of the great morals, which nations, in their progress, have to practise. After all those events, domestic, and foreign, it was supposed by some, that the whole business of the late board of trade had devolved upon the secretary of state; but, the secretary, for the colonies, had been abolished, by the same stroke of law, that bad dissolved, untimely, * 32 Geo. III. ch. 82. C Digitized by knOOQle XVilt Tit "PREFACE, 5 the boards’ commission; and the devolution exclusively fell Upon, the privy council, as the king’s-standing < council/ from ancient times: it .accord-; ihgly acted, for several years, in some difficult questions, while .the old trade, and new, habits of the United States, were to be regained, by means, of a committee of its own jnembers. / The secretary of state, however, while some.diffi-, eulties still remained, ^pointed a law officer, to, enlighten his. steps, though under the late act of parliament *, deliberation, and advice, did not belong'to'an office, which, under that, statute, was merely ministerial, for transmission, rather thart for counsel. .He recollected, perhaps, that the board of trade did enjoy.the instructive aid of a learned' person;. but he /lid’ not .know,; probably, by what authority, ahd for what purpose, such an bfficer'had been appointed,, by the king.. Tohs own counsel, the colonial secretary now referred the several acts of assembly, .as they arrived, from the colonies, before they, were referred, tp the .pyivy council, for examination, apd report to the king: it is easy, then, to see, that such a reference * 22 Geo. III. ch. 82. Digitized by CnOOQle JHX PREPACE. xii was made, by incompetent authority, to an incompetent adviser. The reference, therefore, to such, a counsellor, and his report on such acts of assembly, were, of course, coram nonjudice ; and it was a measure of retardation, rather than of further* ance, towards ultimate completion, by the king’s dissent, or approbation: thus the appointment of such a law officer, the advice of such an officer, and the fees of such an officer, when demanded of prit vate parties, for private acts; as such a demand, in recompence, for incompetent advicej thus coram non judice, must be deemed unofficial, and unconstU tutional. The law, as we learn from sir Edward Coke, scowls on new offices, especially, whefe something is demanded for nothing. . The parliament scowls at every act, by which money is, in any manner, raised on the subject, without some sortof assent, either virtually, or directly, in parliament, or assembly. Every man, every woman, and every child, must scowl at fees, which are demanded, •not for service, but for hindrance. When sir Philip ■ -Yorke, the attorney-general, was consulted about a commission, to empower justices of peace to raise money, for local purposes, at Newfoundland, like a c 2 Digitized by Google XX THE PREFACE. great lawyer, and good man, he cried out, “ he ' hoped no commission would be given for such a purpose, without some sort of assent, by those, who were to pay the tax.” - At length, in August 1786, a committee of privy counsellors, like the analogous committee of 1674F was appointed, by the declaration of his majesty in his council, for the consideration of all matters, relating to trade, and foreign plantations, with a chairman, and vice-chairman, and suitable officers. When this committee was appointed, the act of the 22d of the same king * attached upon it, as it had enacted, that the business theretofore done by the board of trade, should be executed, by a committee of privy council, with all the authorities powers, and jurisdictions, given and enjoyed, by the said commissioners for trade and plantations. The authority, power, and jurisdiction thus given by parliament, precluded all other power, in this respect, whether claimed by the secretary of State, or by others, other than the mere transmission of the colonial acts to the privy council, as , * 22 Geo. IIL ch. 82. Digitized knOOQle THE PREFACE. the Constitutional channel through which the colonial acts must come before such a committee, fot the king’s ultimate decision. When the board of trade was abolished, the commissioners left behind them vast manuscript collections, which are of far more value to the king, and nation, than all the money, that had been paid to them, in the nature of salary, with a penurious .spirit, and a tardy hand; yet must it be allowed, that the value of such collections must be limited, by the use, which is made of them, for the public benefit. ■ From those manuscript collections chiefly, as I have already intimated, the following opinions were transcribed, when researches were made for minor matters; and from them is now published, for the first time, the opinion of the attorney and solicitor-general, sir Philip Yorke, and sir Clement Wearg, which was mentioned with so much approbation by lord Mansfield, when delivering the judgment of the court of king’s bench, in the case of Campbell and Hall; when his lordship considered this opinion as authority, which had not been answered, though two such great names had considerable weight. Such opinions, when given to the king, or his councils, by the Digitized by GooQle xxii Tttt Preface. law officers of the crown, who are bound, by their duties, to give their sentiments, and advice, accord^ ihg to their skill, and knowledge, may be deemed of little less authority, than decided law; and the following opinions are published, with the wellmeaning hope of contributing somewhat to the useful stock of juridical knowledge, which the profession, and the people, enjoy, as the safest shield of private rights; as the noblest palladium of the public good, in such an empire as ours, whose interest, and whose pride, it is, to be governed by law. ' A list of the lawyers, whose opinions are submitted to the public, in the following work : ■ 1. Dr. Exton, of the commons : he published, in • 1664, Maritime dicoeologie, or sea jurisdiction of .England, folio. 2. Dr. Lloyd, of the commons : flourished 1677. 3. Sir Lionel Jenkins, was born in Glamorganshire, in 1620: and having entered Doctor’s Commons, rose amidst vicissitudes, and revolutions, through every step of his profession to the top. He was made secretary of state, in April 1680, and A privy counsellor: he resigned his dignified office. Digitized by Google THE jwm. usiu in Aprii'1684; ’ and -died* in.' 1685, lifter & life: of usefulness, and of honour. He represented Oxford University, in several parliaments. His letters,.and arguments,, (were published, by Wynne, 1724, in 2 vols. folio. v . . . . . , - 4. Sir John King, was elected treasurer of the Inner Temple, on the 30th of October, 1675.' - t 5. Sir Francis Winnington was made solicrton-general, in 1672; became reader of the Middle Temple, in 1675, and treasurer of the same society* in 1676. : r • 6. Sir William Jones, who was treasurer of Gray’s Inn, in 1671, was constituted solicitor-general, in November 1673; and attorney-general, in January 1674-5. . ; ; : 7. Sir Creswell Lavinz, who was treasurer of Gray’s Inn, in 1679, succeeded sir W. Jones, as attorney-general; during the same year. HisiZejJortj, which were praised by lord Mansfield, werd jiub-dished, in- 1702; and these were soon .followed by his Entries. There is a gentleness, in bis. opinions,-as attorney-general, which does faint .high .honour, during an age of little scrupulosity.;. IJe Digitized by Google »Xit THB PREJACB. was created serjeant, ion the 29th of November 1681. * . 8. Sir Robert Sawyer was appointed attorney' general, on the 14th of February 1680-1, and again, on the 7th of February 1684-5 : he died in 1692. 9. H6neage Finch, was appointed solicitor general, in January 1678, in the roopa of Winnington*: his commission was renewed in February 1684; but, he seems to have been superseded by 4ir ThomasPowis, in April 1686. Heneage Finch represented Oxford university, in parliament, during 1678, in 1688, and as low , down as 1700. 10. In 1688-9, the whole judges of England. 11. Sir John Holt, was born at Thame, in Oxfordshire, 1643; and was educated at Abingdon ■school, where his father was recorder: he proceeded to Oriel college, Oxford; became a member of ■Gray’s Inn, in 1658, and was chosen recorder of London, on the 13th of Feb. 1685-6. He was ap. pointed the king’s serjeant on the 22d of April 16$6; on the 17th of April 1689, he was appointed to the high office of chiefjustice of the king’s bench: and, Digitized by knOOQle THE PREFACE. XXV in March 1709, he finished his useful career, without leaving any issue to perpetuate his name. His letter, to the lord-president, the earl of Danby, advising the seizure of the charter of Maryland, without office found, on the ground of necessity, deducts something from his character of inflexibility, as a judge* 12. Sir George Treby was appointed the' recorder of London, in 1680; solicitor-general, the 4th of March 1688-9; attorney-general, on the 7th of May 1689; chief-justice of the common pleas, on the 30th of April 1692: and dying in 1701, was succeeded by sir Thomas Trevor, on the 5th of July 1701. , 13. Sir John Somers was born at Worcester, in 1652; was educated at Trinity college, Oxford; whence, he removed to the Middle Temple; he succeeded Treby, as solicitor-general, on the 7th of May 1689, and as attorney-general, on the 2d of May 1692: in 1693, he was appointed lord keeper of the great seal; and in 1697, was created lordchancellor, with the title of lord Somers. But, on the 21st of May 1700, he was superseded, when sir Digitized by knOOQle xxvi THB PEEFACE.’ Nathan Wright was appointed lord-keeper. Lord Somers was, in 1708, appointed president of the council, which office he resigned, in 1710. He died in 1716, after surviving the powers of his mind. He appears to have been a collector of tracts, during an • age, when such lore abounded. His judgment on the banker’s case was published, some years after his decease. His pamphlet, appealing to the judgment of nations, concerning the rights of kings, and the privileges of the people, has run through, many editions, as we might easily expect, from the title, and the subject-. • 14. Sir Edward Ward, the king’s serjeant, was. appointed attorney-general, as successor to Somers, on the 4th of April 1693, He was made chief -baron of the exchequer, on the the 10th of June 1695 ; and he died, probably, in November 1714, when sir Samuel Dodd succeeded him. 15. Sir Thomas Trevor was appointed solicitorgeneral, on the 2d of May 1692; and attorneygeneral, on the 10th of June 1695. He was made -chief-justice of the common pleas, on the Sth of July 1701: he soon after acquired the peerage; Digitized by Google THS >BEf AC$. xxvii and died, probably in October 1714, when he wasr succeeded by sir Peter King, as chief-justice of the cbmnion pleas.. . • 16. Sir John Hawles w?is appointed solicitorgeneral, on the 13th of July, 1695; and probably died, in 1702; as sir Simon Harcourt succeeded him, in that office, on the 1st of June 1702. In 1680, sir John Hawles published his popular tracts on Englishmen's Rights. During the same age of agitations, he published his remarks on some state trials. He also published, in 1689, a reply to sir Bartholemew Shower, in his controversy with sir Robert Atkyns on lord Russel’s innocence. The state papers, which have since been published, have decided the point, that were then in controversy. 17. Henry Compton, the son of the first earl of Northampton, was born in 1632, and educated at Queen’s college, Oxford. He was created bishop of Oxford, 1674; and, in the subsequent year, was translated to London. He had the honour to educate the two princesses, Mary, and Anne. He firmly opposed the illegal innovations of James II. by defying the persecutions of power. At the eve of the revolution, he conducted the princess Anne to Digitized by knOOQle xxviii THE PREFACE. Nottingham; to prevent her being conveyed to France. He had the additional honour of inaugurating king William, after defending the king’s title, among the peers. He died in 1713, at the age of 81, with the character of an eminent divine, and patriot statesmen. . 18. Sir John Cooke, an eminent civilian, who. was king’s advocate, 1702. . . : 18-22. Sir Charles Hedges; sir Nathaniel Lloyd; Henry Newton; Robert Wood; Humphrey Hendr man ; were all doctors of the civil law, and eminent civilians, at the accession of queen Anne: sir Charles Hedges was the king’s advocate, and secretary of state; sir Nathaniel Lloyd, was king’s advocate ; Henry Newton seems to have been a master in chancery, in October 169 b and afterwards king’s advocate. 23. Sir Edward Northey was. appointed the attorney-general, on the 10th of July 1701; was removed on the 25th of April 1707; was re-appointed, on the 19th of October 1710; and was superseded by Lechmere, on the 14th of March 1717 : in the subsequent year, a pension of one thousand five hundred pounds a year was settled on the late at- Digitized by Google THE PREFACE. xxix torney-general, Northey. He died, near Epsom, among his relations, on the 16th of August 1723; and was buried, by his own request, in Epsom church-yard, where there is a monument to his memory: his daughter married lord Raymond. 24. Sir Simon Harcourt was appointed solicitorgeneral, on the 1st of June 1702, and attorneygeneral, on the 25th of April 1707 ; he was superseded, in October 1708, and was re-appointed on the 18th of September 1710. He was on the 9th of October 1710, appointed keeper of the great seal, and in April 1712, lord chancellor, and during the same year was created a peer. He died, on the 28th of July 1727. 25. Sir Thomas Parker rose speedily from being an attorney, at Derby, by great talents, and eloquence, to the height of his profession. He was created serjeant, in 1705, when he was also chosen into parliament. Having distinguished himself, here, he became distinguished every where else. He was appointed to succeed sir John Holt, as chief justice of England, on the 16th of March 171Q. ■He. became chancellor on the 12th of May 1718: and was created earl of Macclesfield, on the 5th of Digitized by Google m the Preface. November 1721. His fall was as rapid as his risei He was accused, in parliament, of some corruption in the sale of offices in chancery; he resigned • his ' high station, on the 24th of January 1724 : he was fouhd guilty, by his peers, and was fined thirty thousand pounds. He died on the 28th of April 1732. • 26. Sir Peter King, from very different studies, became a student of the Middle Temple. He was chosen recorder of London, in 1708, and was appointed chief justice of the common pleas, on the 26th of October 1714. He was made lord keeper on the 1st of June 1725 j and on the 27th of June 1727, lord-chancellor, and baron of Ockhanl. His infirmities induced him to resign this high office ; and he died on the 22d of July. 1734, aged 65. • 27. Sir James Montagu was appointed solicitorgeneral, in April 1707, attorney-general, irt October 1708, queen’s serjeant, in October 1714, and at the same time baron of the exchequer. In 1718, he Was appointed ohe of the commissioners for the keeping of the great seal: on the 4th of May 1722, 'he Was appointed chief baron; and he died On die 20th of October 1723. ...... - Digitized by knOOQle THJJ PREFACE. . XXXI . 28. Sir Robert Eyre was appointed solicitorgeneral, in October 1708 ; was. made one of the justices of the king’s bench, in May 1710: he was raised to be lord chief-justice of the common pitas ; and he died in January 1736. . 29. Doctor William Strahan of the commons: He published, in 1722, a translation of Domat’s civil law, in 2 vols. folio, which was republished in 1737. 30. Sir Robert Raymond was the son of sir Thomas Raymond,'one of the justices of the king’s bench, who died, in 1683.. Sir Robert was appointed solicitorigeneral, in May 1710, and attorney general, in Qbtober. 1714: he was made one of the justices of .the Jong’s bench,in January 1723; and was advanced to be chief-justice of England, on the 28th of February . 1724. On the earl of Ma?clesi field’s recession, he was appointed with sir Joseph Jekyl,and sir Geoffry Gilbert, a commissioner of the great seal, on the 7th of January 1724. Sir Robert Raymond was created a peer on the 21st of January. 1730rl-. He died on the 19th of March 1733. Ry Northey’s daughter, he left a son, who dying, in 1753, the peerage became extinct. Lord Raymond’s Reports, and Entries, were published long Digitized by knOOQle xxxii THE PREFACE. after his death, and have been often republished, by several editors. 31. .Sir John Fortescue Aland was born in London, in March 1670, the son of Edmond Fortescue, and Sarah, the daughter of H. Aland, of Waterford. He chose the law for his profession; and was called to the bar, by the Inner Temple society. He was appointed the solicitor-general, in; 1715 r and he was made a baron of the exchequer, in January 1716. In May 1718, he was appointed one of the justices of the king’s bench: and, in January 1728, be was removed to the court of common pleas. Here, he continued, in the performance of a very important trust, till the 26th of June 1746, when he was created an Irish peer, by the title of lord Fortescue of Credan, in. the county of Waterford. He did not long survive this splendid reward of his services to the state : dying at seventy-six, on the 19th of December 1746; and leaving his second, and only surviving son, Dormer, who died in 1781, without issue, whereby the title became extinct. Sir John, patronized Elstob, the Saxon scholar, whom he encouraged to publish, with corrections, and enlargements, the Saxons Laus, Digitized by knOOQle THE PREFACE. XXViii appears to have republished, in 1714, and in 1719, the lord-chancellor Fortescue’s work, on the difference between an absolute, and a limited monarchy j with a learned preface, concerning the laws of England, remarks, and an index, by sir John himself. 32. Sir William Thomson succeeded sir Peter King, as recorder of London, in 1714; was.appointed solicitor-general on the 8th of February 1716; and was superseded on the 17th of March 1719. He was appointed a baron of the exchequer, on the 27th of November 1722; and he died, in November 1739. • 33. Richard West was appointed council to the board of trade, in 1718; and died chancellor of Ireland, in 1726. Francis Fane succeeded Mr. West, as counsei to the board of trade, in 1725, and resigned this. trust, in 1746. 34. Edmond Gibson wasborn in Westmorland, 1669. He entered Queen’s College, Oxon, as a servitor. He seems to have early applied much of his genius, and attention, to old English literature. He published at Oxford, in 1691, the Polemo Middinia of Drummond, a macaronic poem, fend James V. king of Scot’s Christ's Kirk on the Green, d Digitized by GooQle xxxiv the preface. with illustrative notes. He published, at that seat of learning, what was doubtless of more importance, in 1692, the Saxon Chronicle, with a Latin translation, an index, and notes. He was soon after appointed chaplain to Tennison, the bishop of London. He took his master of arts degree, in 1694; and in the subsequent year, he gave an Edition of Camden’s Britannia, which his gratitude dedicated to bishop Tennison. Prefer* ments now flowed upon him in rapid course; and his Codex Juris ecclesiastici Anglicani he gave to the learned world, in 1713. He soon had his reward: when Wake was advanced to the primacy, from Lincoln, in 1713, Gibson was promoted to the see, which the primate had left; and, in 1723, he was translated to London, where he acquired the jurisdiction of the colonies, and, incidentally, a seat at the board of trade and plantations. He died at Bath, in 1748; leaving, with several children, a great character for learning, and still more for attachment to the church, whose interests he had promoted. 35. The chief justice Lewis Morris, of New York. 36. Mr. William Hamilton, of Philadelphia. by knOOQle THE PREFACS. XXXV 37. The attorney-general Blenman, of Barba* does. 38. The attorney-general Rawlins, of Barba* does. 39. The chief-justice R. H. Morris, of New Jersey. 40. The attorney-general Chilton,of Barbadoes* 41. Sir Clement Wearg was appointed solicitor* general, on the 3d of February 1723; and died: in April 1726: Lord Mansfield mentioned him, in the case of Campbell and Hall, as a lawyer of great name. 42. Sir Philip Yorke was born at Dover, in 1699. Such were his genius, and diligence, that he quickly rose to be a great lawyer, and a great man, during an age of learned lawyers, and con* siderable men. He succeeded sir William Thomson, as solicitor-general, in March 1710 : he was appointed attorney-general, in January 1723; and chief justice of England, in October 1733, when two thousand pounds a y ear was added to the salary of that office, which requires independence and sufficiency. The great seal was delivered to him, on the 14th of February 1737? which he held for nineteen years, with universal applause. He resigned it, in d2 Digitized by c >gle XXXVi THE PREFACE. November 1756, amidst the convulsions and regrets of his country. 45. Charles Talbot, the son of William, bishop of Durham, who died in 1730, was appointed solicitor-general, on the death of sir Clement Wearg, in April 1726; and was constituted lord-chancellor, and created lord Talbot, in 1733. He died in 1737, at the premature age of fifty-one; having previously lost hjs son, who was deplored, in the pathetic, strains-of Thomson. . 44. Sir Thomas Reeve was appointed a justice pf the common pleas, in February 1733, and in January 1736, chief-justice of the same court; and he .died .in 1737; leaving Instructions to his Nephew, for the Study of the Law, which were published, in the Collectanea Juridica, vol. ii. 79. . 45.. Thomas Lutwyche, who was, probably, the son of sir Edward Lutwyche, died on the 18th of November 1734, one of the king’s counsel: he entered, the house of commons, in 1710, and continued to sit in it till his decease, when he sat for Amersham. 46. , Sir John Willes, while a student at All-souls .college, Oxford, published in 1714, a pamphlet, entitled, w The present Constitution, and the Protest- Digitized by knOOQle THE PREFACE. xxxvii ant Succession vindicated,” in answer to a late book, the well known Hereditary Right of the f!rown of England asserted. In 1718, he was sent to Scotland, to assist in carrying on the prosecutions for high treason, which impolicy had instituted, and the firmness of the grand juries disappointed, by throwing out the bills. He was nominated attorney-general, in December 1733, when sir Philip Yorke was made chief-justice of England; and he was appointed, in January 1737j the chief-justice of the common pleas: he died in 1761- His Reports were published, in 1799, by Dornford, extending from 1737 to 1758. 47. Doctor Paul, of the commons, the king’s advocate. - 48. Sir Dudley Ryder became solicitor-general, in December 1733, on the promotion of Mr. Talbot; and attorney-general, in January 1737; and chiefjustice of England, on the death of sir William Lee, in April 1754: he died on the 25th of April 1756. He was to have waited upon his majesty, the day before, on account of his being created a peer, by the title of lord Ryder ofHar-rowby, Lincolnshire; but his indisposition pre- - by GooqIc XXXV iii THE PREFACE. vented his having that honour, which he had merited, by his talents, and services. 49. Sir John Strange became solicitor-general on the promotion of sir Dudley Ryder. He was chosen recorder of London, in November 1739; and he was appointed master of the rolls, in January 1750: he died in 1754. He is remembered for his Reports, which were published, by his son, in 1755. 50. The honorable William Murray, the fourth son of David, viscount of Stormont, was born at Perth, in 1705; and was educated at Westminster School, and Christ’s Church, Oxford *. Returning * He was admitted to St. Peter’s College, Westminster, in 1719> at the age of fourteen; and iu 1723, was elected to Oxford. It is curious to remark, that the college registrar, being probably somewhat dull of hearing, recorded the admission of Mr. Murray, aged eighteen, born nt Bett, in the county of Somerset. Sir William Blackstone, diuing with lord Mansfield, and saying, that he could prove, by record evidence, that his lordship was not a Scotchman born, but an Englishman, produced a copy, from the college matriculation book, which -made his lordship laugh very much; and he explained the mistake, by supposing that the person, who stated his place of birth, to have pronounced Per/A, with a broad accent, which the registrar mistook for Bath. Digitized by knOOQle THE PREPACK. xxxix from bis travels, he entered into Lincoln's Inn, where he was called to the bar, in 1791. Here his abilities soon became known, both as a lawyer, and an orator, and he immediately came into full business of the highest kind. In November 1742, he was appointed solicitor-general, on the resignation of sir John Strange; and he was, immediately/ after, chosen into parliament, for Boroughbridge,and for it served till he was appointed chief-justice: this is an important fact; as it shows, that he obtained his first preferment, from Westminster-hall, and not from the Senate-house; and he was not even a king’s counsel till November 1742. How much he was now consulted by the Pelhams, and how much his advice was followed by them, we may learn from Doddington’s Diary. He was, of course, appointed one of the managers for the commons, on lord Lovat’s impeachment; and such was at once the moderation of his manner, the candour of his spirit, and the efficacy of his eloquence, that he was thanked, both by the culprit, and the court. He was long solicitor, not being appointed attorneygeneral, till April 1754: this furnishes another point of instruction, that perseverance, in an inferior station, generally leads on to the highest; and it Digitized by )OQle xl THE PREFACE. evinces, also, his unassuming gentleness. When sir Dudley Ryder sunk under his infirmities, the attorney-general Murray was immediately appointed chief-justice; he was created lord Mansfield, on the 8th of November, 1756; and he was of course called into the privy council. Of his conduct, during two and thirty years, as chief-justice, the juridical Reports are the Records, and the Commentaries. During the political contests of the year 1757, he acted, officially, as chancellor of the exchequer, in the room of Mr. Legge. In 1774, he went to Paris, on a private embassy, and on his private affairs, probably, lord Stormont, his nephew and heir, being then ambassador at the French court. He was three times offered the great seal, which he as often declined. He was advanced to an earldom, in October 1776 : and by a new grant, the remainder, after failure of his own issue male, was limited to his heir, the viscount of Stormont. During the tumults of 1780, his house in Bloomsbury Square was burnt, by the mob, with his books, and manuscripts: with his usual delicacy, he declined all compensation, as he knew, that he could not be compensated. He repaid the popular insult, by an augmented assiduity, in the labours Digitiz - by knOOQle THE PKETACI. Xli of his high trust, for the popular good. At length, his infirmities induced him to resign his office, in January 1788 ; when he was followed, by the regrets of the profession, and the genuine respect of an enlightened public. He died at Caenwood, on the 20th of March 1793, aged eighty-eight; leaving a very great fortune, the necessary effects of prudent management, throughout so many years. His fine intellect, and retentive memory, remained to the last; though he had lived, for several years, under great debility of person. In April 1784, he lost his wife, lady Elizabeth Finch, to whom he was married in 1738, yet by whom he had no issue. On the morning of the 28th of March, he was buried, in the same vault with his late countess, in Westminster Abbey. The judges of the several courts, and the most eminent lawyers, intended to have followed to the tomb the remains of this illustrious jurist; but they were assured, by lord Stormont, that it was the particular request of the late earl, that his funeral should be as private as possible. A monument has been erected to his memory, by the singular affection of a private person, in the same abbey, that is crowded with monu- Digitized by GooQle Xlli TUB PREPACK. ments to the celebrated characters, which this nation has produced, and fostered, in every age. 51. Sir Robert Henley succeeded lord Mansfield, as attorney-general, in 1756. This was to be expected, from the notices of him, in Dodding-ton’s Diary. He was appointed the keeper of the seal, on the 30th of January 1757; and he was created lord Henley, in 1760: appointed lord chancellor, in January 1761; and created earl of Northington, in May 1764 ; and was made lord president of the council, in June 1766. He died on the 14th of January 1774. 52. Charles Pratt, the third son of the chief justice, was educated at Eton, and King’s College, Cambridge: he was, though in obscurity, and without any previous office, in the law, appointed attorney-general, when Henley was made lord keeper, in June 1757. He was made chief justice of the common pleas in 1762, and it was from this height, during a season of perturbation, that he gained his popular honours. Other lawyers, and other judges, as great as he, have coveted the popularity, which follows one, rather than what is followed. In 1765, he was raised to the peerage, Digitized by GooQle THE PREFACE. xliii and in 1766 was appointed to the seals, which hd lost, by maintaining doctrines, that his coadjutors did not approve. He sided with the colonial pretensions, and opposed the government, during the war of the revolted colonies : coming in collision with lord Mansfield, while maintaining such pretensions, he lost ground'as an orator, and a lawyer, whatever he may have added to his popularity. In 1782, he was appointed lord president of the council, which he held during his life, if we except a short recession in 1783. On the 18th of April, 1794, he died, having been created in May, 1786, viscount Bayham and earl Camden. He is ranked among the royal and noble authors; as the writer of a tract, on the nature and effect of the habeas corpus act, the great bulwark of English liberty, which he is said to have published in 1758: his argument, in the case of Hindson and Kersey, wherein lord Mansfield’s argument, in Windham and Chetwynd, was considered, and answered, was given to the public in 1766*. • This argument, when published, in London, was suppressed, by order of the court of common pleas, over which lord Camden then presided ; but it was soon published in an 8vo. pamphlet, at Dublin, 176$. Park’s edit Cat R. and N. authors* vol. iv. 360. Digitized by GooQle xliv THE PREFACE. 53. The honorable. Charles Yorke, the second son of the great earl of Hardwick, was born, in 1 722, and owed his scholastic education to Cambridge, as he owed his law learning to Lincoln’s Inn, which has produced so many profound lawyers. He was a coadjutor, in writing the celebrated Athenian Letters, and amused himself with poetry. In 1745, he gave to the learned world his Considerations on the Law of Forfeitures, which went to the fourth edition in 1775, at the eve of another revolt. He entered parliament, as representative for Ryegate, in 1747, at the age of 25. He succeeded sir Richard Lloyd, as solicitor-general, in November 1756, and followed lord Camden, as attorney, in December 1761; but he resigned this office in November 1763, and was again appointed in August 1765. He was chosen a fellow of the royal society, a trustee of the British museum, and recorder of Dover. At length, in 17z70, he was appointed lord chancellor, and was created a peer; but dying in the same month, before his patent had passed the great seal, the creation did not take effect, though the patent had passed through every other form. 54. Sir Richard Lloyd was appointed solicitor- Digitized by knOOQle THE PREFACE. xlv general in April, 1754, upon the promotion of lord Mansfield. In 1759, he was called to the degree of serjeant, on his being made a baron of the exchequer; and he died in 1761. 55. Dr. George Hay, the king’s advocate. 56, Sir Fletcher Norton was born on the 23d of June 1716, and, in May 1741, married Grace, the eldest daughter of sir William Chapple, one of the judges of the king’s bench. He was appointed solicitor-general in December 1761, in the room of the honorable Charles Yorke; and attorney-general in November 1763, which he held, probably, till August 1765. In February 1769, he was appointed chief justice in eyre, south of Trent, which he held till June 1789. He was chosen speaker of the bouse of commons in 1770, and continued to fill that distinguished station till 1780. He was created lord Grantley on the 9th of April 1782, and he died on the 1st of January 1789. 57. Sir William de Grey was appointed solicitorgeneral in December 1763, in the room of Sir F. Norton, and attorney-general in August 1766: he was made chief justice of the common pleas in January 1771, in the room of sir J. E. Wilmot, Digitized by GooQle xlvi THE PREFACE. resigned. He was created lord Walsingham in 1780, and died on the 9th of May 1781, 58. Edward Willes was appointed solicitor-ger neral in August 1766, in the room of sir William de Grey; and in June 1768, one of the justices of the king’s bench, in the place of Mr. Justice Hewit. 59. Sir Lloyd Kenyon, of the Middle Temple, was, on the SOth of April 1782, appointed attorney-general, in the room of Wallace, who, however, was restored on the 16th of April 1783; and on the 26th of December 1783, he was again appointed attorney-general, acting, at the same time, as chief justice of Chester. Such shifts of policy show the distraction of the times. He was appointed master of the rolls. In June 1788, he was raised to the yet higher office of chief justice of England, on the resignation of lord Mansfield, and was, at the same time, created lord Kenyon, of Gredington, in the county of Flint. He died at Bath on the 2d of April, 1802, while chief justice, custos rotulorum of Flintshire, and one of the governors of the charter-house, 60. Sir Richard P. Arden, the second son of John Digitized by knOOQle THE PREFACE. xlvii Arden, of Arden, in Cheshire, was educated under the tuition of Thyer, the editor of Butler’s Remains, and proceeded to Trinity college, Cam. bridge, wherein he distinguished himself. He took his M.A degree in 1769: he was called to the bar by the Middle Temple society, and was appointed solicitor-general on the 26th of December 1783, and attorney-general on the 30th of March 1784. He succeeded sir Lloyd Kenyon, as master of the rolls, in 1788. He was appointed. chief justice of the com mon pleas inMay 1801, when he was created lord Alvanley, and he died the 19th of March 1804. 61. Sir Archibald Macdonald was born in 1747, the son of sir Alexander Macdonald, of Slate, by the lady Margaret Montgomery, the daughter of the earl of Eglington, and is, of course, the brother of the late lord Macdonald. His education, however, was English : he entered Wesminster school, in 1760, at the age of thirteen, and was elected to Christ Church, Oxford, in 1764. He was elected representative in parliament for Hindon, in 1774$ and for Newcastle under Line, in 1780 and 1784: ha was appointed one of the king’s counsel in 1778, Digitized by knOOQle Xhiii THE PREFACE. and one of the judges for Wales in 1780. In April 1784, he was appointed successor to sir Richard P. Arden, as solicitor-general; and in September 1788, he also succeeded sir Richard, as attorneygeneral. In February 1793, he was appointed chief baron of the exchequer, in the room of sir J. Eyre, who was promoted to be chief justice of the common pleas; and sir Archibald was sworn a privy councillor on the 15th. After discharging this great trust, for upwards of twenty years, with satisfaction to himself, and benefit to the public, he gave in his resignation, on account of the failure of his eyesight: in October, 1813, and on the 6th of November following, he was created a baronet of the united kingdom, in consideration of his long and faithful services. 62. Sir Matthew Lamb, who succeeded Mr. Fane, as counsel to the board of trade, in 1746, and died in November, 1768. 63. Richard Jackson, who was appointed counsel to the board of trade in April 1770, and died on the 6th of May, 1787, a privy councillor, and clerk of the paperoffice, in Ireland, an office which lord Bowes had held. Digitized by CiOOQle THE PREFACE. xlix 64. William Kemp, barrister-at-law, who died . attorney-general of New York, about the year 1793. ■ 65. William Smith, who w^s a lawyer of the same province, and died chief justice of Quebec; 66. James Holyday, of Maryland. 67. William Paca, of the same province. 68. The honorable Daniel Dulany, secretary, and one of the council of the same province. 69. Sir James Marriot, doctor of laws, was born in 1731, the son of an attorney, in Hatton Garden. Choosing the civil law for his profession, he received his university education at Cambridge. He is said to have obtained his first promotion by arranging the duke of Newcastle’s library, when chancellor of the university of Cambridge. He was elected master of Trinity-hall, on the death of Dr. Dickens. He distinguished himself, as a civilian, by publishing, in 1759, “ The Case of the Dutch Prizes, taken in the War before the last.” In July, 1764, he was appointed the king’s advocate, in the room of sir George Hay, who was promoted to be judge of the arches, and the prerogative courts. In 1768, being then vice-chancellor of the e • Digitized by knOOQle 1 THE PREFACE. university of Cambridge, he presented the honours of that illustrious body to the king of Den* mark, at Newmarket. In 1769, he published “.The Rights and Privileges of both the Universities, and of the University of Cambridge in particular, defended in a Charge to the Grand Jury, at the Quarter Sessions for the Peace at Cambridge, October the 10th, 1768 :” he also published his argument, in the case of the colleges of Christ, and Emanuel. His poetry may be seen in Dods-ley’s Collections. He distinguished himself by the acuteness of his answers^ when examined at the bar of the house of commons, on the Quebec constitution. He was appointed judge of the high court of admiralty, in the room of sir George Hay. He resigned this high office in October 1798, and, at the age of 72, he died, on the 21st of March, 1803, at two o’clock in the morning, while sitting in his chair, at Twinstead-hall, near Sudbury, which he had represented, in two parliaments. His learned, and singular judgment in the high court of admi* ralty, in the case of the ship Columbus, is published in the Collectanea Juridica, vol. i. p. 82. 70. Sir William Wynne, doctor of laws, seems Digitized by GooQle THE PREFACE. 11 to have followed the tract of sir James Marriot to the top of his profession, which has been dignified by so many eminent men, who were distinguished by their talents, and probity. In October 1773, he was appointed vicar-general of the province of Canterbury, and his majesty’s advocate-genera]. On the decease of sir J. Marriot, was elected, in his room, sir Wm. Wynne, one of his majesty’s privy council, official principal of the arches court of Canterbury, master of the prerogative court of Canterbury, commissary of the deanery of the arches, and master of Trinity-hall, Cambridge. 71. A barrister. 72. John De Witt was born of a noble family in 1625; became pensionary of Dordrecht, and pensionary of Holland, intendant of the fiefs, and keeper of the seals. During troublous times, he governed Holland with great ability, though he could not always command success. He excluded William the Third, prince of Orange, from his constitutional share ir^the government of the States. He was thereupon attacked by four assassins. The prince of Orange was restored to the stadtholder-ship j but two great men could not safely exist, at Digitized by GooQle lii THE PREFACE. the same time, within the same republic : mutual accusations ensued: and a popular tumult arose, which sacrificed De Witt to the people’s passions, at the Hague, in 1672: he died, repeating with his last breath, Horace’s Ode—Justumet tenacem propositi wirum, 8$c. * 73. Sir William Temple was born in 1629, at London, the son of sir William Temple of Sheen, and master of the rolls in Ireland, by a sister of the learned Henry Hammond. He was a student at Emanuel college, Cambridge, under the erudite Cudworth. After some travel, he retired to a private life, in Ireland, during the usurpation. At the restoration, he returned to England, with a view of serving his country, chiefly, as a negotiator: he is chiefly praised for settling the triple league in 1668; and, secondly, for procuring the marriage* of the princess Mary with the prince of Orange. Both De Witt, and the States of Holland, expressed ♦ The man whose mind on virtue bent. Pursues some great and good intent, With undiverted aim, Serene beholds the angry crowd. Nor can their clamours, fierce and loud, His stubborn honour tame. Digitized by GooQle THE PREFACE. liii their satisfaction with the conduct of Temple. After the peace of Nimeguen, he was recalled from Holland, in February, 1678-9. He now applied himself to his private studies: he died in 1700, at Moor Park, near Farnham, in the seventy-first year of his age; leaving a character, for principles, and knowledge, which has been drawn, in very opposite colours, by very different parties. Digitized by Google Digitized by Google Digitized by Google Digitized by Google OPINIONS OF EMINENT LAWYERS ON VARIOUS POINTS OF ENGLISH JURISPRUDENCE. First. The king, who wears the crown of Great Britain and Ireland, enjoys the sovereignty of the general territory, belonging to the same crown, with the allegiance of the inhabitants thereof, under the various modifications of the existing law. The following opinions seem to acknowledge the truth of that proposition, as a fundamental principle of the established constitution. The king’s prerogative, within those territories, may be considered, then, under two heads: I. Of his Ecclesiastical authority: II. Of his Civil authority. . A I. Of the king’s Ecclesiastical authority abroad. • The royal prerogative, in this respect, is distribut- Digitized by Google 2 opinions of [Of the King’s ed into two subordinate heads: 1st. The bishop of London is diocesan of The colonies: 2d. The archbishop of Canterbury’s prerogative power, concerning wills and administrations, is superior to the analogous prerogative powers, in the colonies. (1.) The opinion of the attorney-general Northey, on this subject, in 1705. To the right hon. the lords commissioners fox trade and plantations. May it please your lordships. In obedience to your lordships’ commands, signified to me by Mr. Popple, junr. your secretary, I have considered of the annexed extract of a letter from colonel Seymour, governor of Maryland, relating to the jesuits and papists there; and the ex-, tract also sent me, of the grant of the province of Maryland to the lord Baltimore, relating to the ecclesiastical power. And the questions proposed thereon, whether the laws of England against Romish priests are in force, in the plantations, and whether her majesty may not direct jesuits, or Romish priests, to be turned out of Maryland. And as to the said clause in the grant of the province of Maryland to the lord Baltimore, relate ing to ecclesiastical power, I am of opinion the same doth not give him any power to do any thing contrary to the ecclesiastical laws of England, but he hath only the advowsons of, and power to erect and consecrate churches, and such Digitized by Google fr^atibe abroad] Eminent lawyers? 4 power as the bishop of Durham b^, 4s farl palatine, in bis county palatine, who WHS subject td the laws of England; and the consecrations of chapels ought to be, 3s in England, by prtl;odox ministers only. As to the question, whether the laws ofbpgland against Romish priests are 14 force, in the plantations ; by the statute of 37mp. of Elizabeth, c^p. 9. every jesuit, seminary priest, or other such priest* deacon or religious, or ecclesiastical person, bqrq within this realm, or any other hep majesty’? do* minions, made, ordained, or professed, by any 33, thority, or jurisdiction derjiyed, challenged,! qr pre? tended from the see of Rome, who shall pom® into, or be, or remain, in any part qf thi? r^n), qr any other her majesty-s dominions, is guilty qf Jrigh treason : it is plain that Jaw extended Jo all th® dominions the queen had when it W^s made ; but some doubt hath been made, whether it p?tepd-pth to dominions acquired after, as the plantation have been. By the statute Hum. William, fer^evt^ the further growth of popery, it is prodded, that if any popish bishop, priest, qr jesuit, whatsoever, shall say mass, flr exercise guy qtbqr p$$ sf^ pfice or function of ? popish bishop, that nothing might lye in his way, and to remove all possible obstructions, and as an additional strength to, and confirmation of, his title, and thereby the more to encourage his associates to carry on the said settlements with spirit and vigour, the said John Leveret treated and Digitized by GooQle Prerogative abroad.] Eminent Lawyer*. 99 agreed with Spencer Phipps, esq. adopted son and heir, and also devisee of the said sir Wm. Phipps, to purchase out his interest in the said premises; and accordingly the said Spencer Phipps, by his deed-poll, indorsed on the said Indian purchase, deed, and bearing date the 13th day of August, 1719, for afull and valuable consideration, released, assigned, conveyed, and confirmed to the said John Leveret, as well the said deed from the said Madakowando to the said sir Wm. Phipps, as also all the tracts and parcels of land thereby granted and conveyed to the said sir Wm. Phipps, and which are mentioned in the said deed, to be then ha the seisin and possession of the said Leveret, with their appurtenances, to bold to the said John Leveret, his heirs, and assigns, to his, and their, only proper use and benefit for ever. That the said John Leveret having thus a secure title in him to the said tract of land, both by grant from the crown, and by purchase from the Indians, which is always held inviolable in these parts, and having associated several gentlemen of consider, able fortune to join with him in settling and improving these lands, for the better effecting the Same, the said John Leveret, by deed of association, bearing date the 14th day of August, 1719, admit, ted and joined the petitioners, Elisha Cook, Nathaniel Hubbard, Hannah Davis, Rebecca Lloyd, Sarah Byfield, John Radford, and Spencer Phipps, US associates, to and with himself, in the said lands H 2 Digitized by GooqIc 100 Opinions of [Of the King's and premises, conveying to each of them such parts and shares of the said land, as in the said deed is particularly mentioned; and by another deed of association, bearing date the 15th day of the same month of August, between the said John Leveret and the last named petitioners of the one part, and the petitioners, Jahaleel Brenton, John Clark, Samuel Brown, Thos. Fitch, whose right is vested in the petitioners, John Fitch, Adam Winthrop, Samuel Thaxton, Oliver Noise, Stephen Minott, Anthony Stoddard, Thomas Westbrook, Thomas Smith, John Smith, Joseph Appleton, whose right; is now vested in the petitioners, Nathaniel Appleton, Thomas Fairweather, Henry Franklyn, Gilbert Bant, Benjamin Bronsdon, William Clarke, John Oulton, Jonathan Waldo, Cornelius Waldo, and John Jefferies of the other part, reciting the several deeds aforesaid, the said last-named petitioners, and those under whom they claim, as aforesaid, are admitted and joined together, as associates in the said land and premises, and such parts thereof allotted to them, as in the said last deed is particularly mentioned, the whole to be divided into thirty equal parts, to be holden by all the said petitioners, and those under whom they claim, as aforesaid, their respective heirs and as-. signs for eyer, as tenants in common, and to be no survivorship, with proper covenants, each obliging the other to procure people to plant, settle, apd inhabit two towns, of eighty families each, in a chris- Digitized by GooQle Privative abroad.] Eminent Lawyers. 101 tian manner, in and upon the said tract of land, under such limitations, conditions, and reservations, as in the said deed is expressed; and to erect two saw-mills on the said land ; and for the better ordering and regulating the said designed settlements, it was covenanted and agreed that the extent of the said two towns should be described, and that the same should be laid out, in a regular and defensible manner, upon St. George’s River, and that proper lots in each town should be set apart for a minister and a school unalienable, and that lands should also be set apart, to be bestowed on the settlers in the said townships, with covenants for the association to do the utmost for the completing and perfecting the said designed settlements. That the rest of the petitioners have since purchased several parts of shares from the other petitioners in the said lands. That hereupon the petitioners, and those under whom they claim immediately, began on making the said settlements, and soon after they agreed to have as much land broke up and cultivated as would accommodate a sufficient number of families for two more towns, to consist each of eighty families at least, and the houses for their reception to be made comfortable; and in order to prosecute, and effectually bring forward, the said intended settlements, they built and finished two strong, large block-houses, with a covered way from them to the water side, to secure the men from the incursions Digitized by GOOQle 103 Opinions of [Of the King's and injuries of the Indians, who daily resorted there in great numbers, and ofttimes threatened those employed in building and clearing the land, who used several stratagems to get them from off those lands, and the petitioners also built a double saw-mill to facilitate the settlements, and bought a sloop, and hired men to transport people, and their effects, besides several other sloops employed by them in the said undertaking, and had, for above twelve months, a captain and 20 soldiers, whom they paid and subsisted in the said blockhouses, and who were provided with great and small artillery to defend themselves and the workmen from the attacks of the French Indians, at the sole charge of the said association. That by this means, notwithstanding the great many disturbances they received from the French Indians, the petitioners very vigorously pushed forward in settling, and bringing those lands into a capacity of receiving and securing a number of in? habitants, and actually built and erected several houses thereon. That in June, 1791, the French Indians, to the number of 200, surprised, took, and burnt one of the petitioners’ sloops, and killed one of their men, and took six captive, and then immediately made up in a body to the block-houses, and the next day attacked them with fire-arms for several hours, and used several devices to have burnt the blockhouses, but were defeated by the courage of the Digitized by Google Prerogative abroad.} Eminent Lawyers. 103 men employed by the petitioners; but in this attack the petitioners were great sufferers, the Indians having killed one, and taken six prisoners, burnt their saw-mill, a large sloop, and sundry houses, and killed many of their cattle; but notwithstanding this great destruction made on the petitioners, they still kept and maintained the two block-houses with men and warlike stores, and provisions, for several months afterwards, although the government of the Massachusets had proclaimed war with these Indians, and the other eastern tribes. That the petitioners being, by this war, incapacitated from pursuing the settlements they had so successfully begun, were obliged to desist therefrom ; but they yet held the two block-houses, and defended the same against a siege laid to it by the Indians, for twelve days together, and killed twenty of the enemy; and apprehending the same might be of great service to the Massachusets government, in carrying on the war, they made a tender of them to the government there, during the war, and until the petitioners should have occasion to use them, for the purposes at first designed ; which offer the government accepted, and to whom they proved of great service in the war, and were the sole means of keeping that part of the country from felling into the hands of the Indians, and have ever since continued under the protection of the government; and since the war ended, a Digitized by GooQle 104 Opinions of tty the Kings truck-house is erected in the block-houses, which are hsed as magazines, or store-houses, for Indian goods. That on the endihg of that war, the petitioners again resolved to continue, and go on, with their said settlements, and for that purpose they applied for, and obtained, a letter from Samuel Shute, esq., then governor of the Massachusets Bay, to the chief of the said Penobscott Indians, to facilitate the petitioners going on with, arid finishing their said settlements. But soon- afterguards another war broke out with those Indians, which then prevented the petitioners further proceeding in their intended settlements; but a peace being again concluded with them, some short time before Mr. ■ Burnet’s coming to that government, the petitioners being still intent, and resolved, on bringing forward, and finishings the said settlements, obtained a like letter from governor Burnet, as they had before done from governor Shute, and were going on to settle and improve those lands, with all possible vigour and dispatch, and had actually got a minister, and 120 families, ready to go, and settle in one of the said intended towns, but to their great surprise, disappointment, and loss, the petitioners have met with an interruption herein, from David Dunbar, esq*, sttrveyor-general of his majesty’s woods in America; who, being waited on by a number of the petitioners, hath forbid the petitioners from going on with the said settlements, and Digitized by knOOQle /Prerogative ubroadi] Eminent huTcyers. 1()5 informed the petitioners, that he could not perniil their going on with their settlements, on any other terms, but their taking grants from him, in the same manner, as if they had not already any title thereto ; upon which the petitioners informed Mr. Dunbar, that they thought it their duty, to lay before his majesty, the matters aforesaid, and Mr. Dunbar promised the petitioners not to intermeddle with the said lands, till his majesty’s pleasure should be known. Therefore, and as the petitioners have so clear a title to their lands, both by grant from the crown, and purchase from the natives, and haye had the possession thereof for so many years, and been at a very great expense in erecting the block-houses, and several other buildings thereon, and defending the same, in the manner before stated, and their en-deavoorsj and attempts, to improve and settle the same, which had been long since completed by the petitioners, but from the unavoidable interruptions given them by the wars ; but have always, by means of their block-houses, kept the possession thereof, and thereby guarded and protected all that part of the country ; and as the petitioners are determined to complete the said settlement with all possible dispatch, which being of great advantage to the province of the Massachusets, and his majesty’s interest there : the petitioners, in consideration of the premises, most humbly prayed his majesty, that his majesty would be pleased to send the necessary orders. . Digitized by Google 106 Opinions of {Of the King’s -©^instructions, to the said David Dunbar, not to intermeddle with the said tract of land, to which the petitioners are so intitled, as aforesaid; and that he do not interrupt, obstruct, or disturb, the petitioners, in carrying on their settlements, there, on any pretence whatsoever; that so the petitioners may be quieted in the enjoyment thereof, and carry on the settlements, intended by them, without molestation. And we certify your lordships, that we have been attended by Mr. Paxton, solicitor for the affairs of his majesty* s treasury, and by the respective agents, of the province of the Massachusets Bay, in New England, and of the petitioners, and have heard counsel on behalf of the crown, and of all the said parties; at which hearing, was laid before us, a. copy of the charter, granted by their late majesties, king William, and queen Mary, on the 7th day of October, in the third year of their reign, to the in* habitants of the said province of the Massachusets Bay, and the several affidavits hereunto annexed, together with copies of divers conveyances, of particular parcels of land, lying within the tract in question, which were certified under the seal of the paid province. Upon considering the said case, and petitions, and the evidence laid before us, and what was alleged on all sides, it appears to us,—that all the said tract of lands, lying between the rivers of Kennebeck, and St. Croix, is (amongst other things) Digitized by Google Prerogative abroad^ Eminent Lawyers. 107 granted, by the said charter, to the inhabitants of the said province, and that thereby power is given to the governor, and general assembly of the said province, to make grants of lands within the said limits, subject to a proviso, that no such grants should be of any force, until their said late majesties, their heirs, or successors, should have signified their approbation of the same. It appears also by the said charter, that the right of government, granted to the said province, extends over this tract of land. It doth not appear to us, that the inhabitants of the said province have been guilty of any neglect or refusal, to defend this part of the country, as can create a forfeiture of that subordinate right of government of the same, or of such property in the soil, as was granted to them by the said charter: it being sworn by several of the said affidavits, that a fort was erected there, and for some time defended, at the charge of the province, and that magistrates, and courts of justice, have been appointed within this district, and that one of the counsel of the province hath always been chosen of this division; and though it is certain, that this part of the province hath not been improved, equally, with other parts thereof, yet, considering the vast extent of country, granted by this charter, and the great improvements made in several parts of it; we conceive that will not create a forfeiture, because, in such cases, it is not to be expected, that the whole should Digitized by GOOQle Opinions of iOS be cultivated, and improved, to the same advantage j and whether there hath been such a neglect, or non-user, of any part, as may amount to a forfeiture, must be judged of, not upon the particular circumstances attending that part only, but upon the circumstances of the whole. And if the province had incurred any forfeiture in the present case, no advantage could be taken thereof, but by a legal proceeding, by scire facias, to repeal their charter, or by inquisition finding such forfeiture. As to the question, stated in the case, upon the effect of the conquest of this tract of country, by the French, and the re-conquest thereof, by general Nicholson, we conceive that the said tract not having been yielded by the crown of England, to France, by any treaty, the conquest thereof, by the French, created, according to the law of nations, only a suspension of the property of the former owners, and not an extinguishment of it, and that, upon the re-conquest, by general Nicholson, .all the ancient rights, both of the province •and of private persons, subjects of the crown of Great Britain, did revive, and were restoredjurepostli-minii.—This rule holds the more strongly in the present case, in regard, it appears, by the affidavits, that the province joined their forces to those which came thither, under the command of general Nicholson, in this service. ' For these reasons, we are of opinion, that the [Of the Kinfs Digitized by knOOQle Prerogative abroad!] Eminent Lawyers. 109 said charter still remains in force, and that the crown hath not power to appoint a particular governor over this part of the province, or to assign lands to persons desirous to settle there; nor can the province grant those lands to private proprie* tors, without the approbation of the crown, according to the charter. As to the case of the petitioners, in the two petitions referred to us, who insist upon particular titles in themselves, to certain parcels of lands, lying within the district in question, we have examined into their claims, and find by the above mentioned copies of deeds, and writings, produced by them, that several of the petitioners, and those under whom they claim, have had conveyances made to them, of several of the said parcels of land, some from the council of Plymouth, which was constituted hy charter, in the reign of king James the First, and whose grants are confirmed by the charter of king William and queen Mary, and others from Indians, pretending to be owners thereof, under which large sums of money appear, by the said affidavits, to have been laid out, in endeavouring to settle and improve the lands, therein comprised, several of which sums were expended not many years ago; particularly a sum of ^£000, by sir Bibye Lake, in the year 1714, and other sums of money, by others of the petitioners, in the years 1719, and 1720. And though these settlements, and improvements, have been in great measure in- Digitized by knOOQle 110 Opinions of . \Ofthe Kinf* terrupted and defeated, by frequent wars, and incursions of the Indians, yet several of the petition* ers, or their tenants, appear to be still in possession of some parts of the said tract of land. - Some objections were made before us, to the nature of the grants and conveyances, under which the petitioners claimed, and the manner of deducing down their titles; but we conceive, that in questions of this kind, concerning rights to lands iri the West Indies, and upon enquiries ofthis nature, the same regularity and exactness is not to be expected, as in private suits, concerning titles to lands in England, but that in these cases, the principal regard ought to be had to the possession, and the expences the parties have been at, in endeavouring to settle and cultivate such lands. Therefore, upon the whole matter, we are of opinion, that the petitioners, their tenants, or agents, ought not to be disturbed in their possession, or interrupted in carrying on their settlements, in the lands granted to them, within the district in question. ■ IMA August, 1731. P. Yorke. C. Talbot. (18.) Of the king’s right to the woods, in the province of' Main, by Mr. West. To the right bon. the lords commissioners of trade and plantations. My lords. In obedieqce to your lordships’ commands, I Digitized by knOOQle Prerogative abroad.} Eminent Lawyers. Ill have perused and considered of the several papers relating to the memorial of John Bridger, esq. surveyor-general of his majesty’s woods in America, and I do find that the title which Mr. Elisha Cook doth, by his memorial, claim to be in the province of Massachusets Bay, in opposition to the right of his Majesty to all trees fit for masts, of the diameter of twenty-four inches and upwards, at twelve inches from' the ground, growing within the provice of Main, in America, is founded upon a supposed purchase of the said province of Main, by the province of the Massachusets Bay, of and from the assignees of sir Ferdinando Gorges, the person to whom the said province was originally granted from the crown. I must beg leave to observe to your lordships, that king Charles the First did incorporate the assignees of the patent, which king James the First did, in the eighteenth year of his reign, grant to the council established at Plymouth, in the county of Devon, by the name of the governor and company of the Massachusets Bay, in New England, by which charter the said king did grant unto the , said corporation power to have, take, possess, acquire, and purchase any lands, tenements, or hereditaments, or any goods or chattels, and the same to lease, grant, demise, alien, bargain, sell, and dispose of, as other our liege people of this our • realm of England, or other corporation, or body politic, of the same, may lawfully do. In the fifteenth year of king Charles the First, Digitized by GooQle 111 Opinions of [Of ike Kjng’» the province of Main was granted to sir Ferdinando Gorges, his heirs and assigns, which pro? vince did descend unto Ferdinando Gorges, .son and heir of John Gorges, who was son apd heir of the said sir Ferdinando Gorges, which Ferdinando Gorges did, in the year 1677, in consideration of the sum of one thousand two hun-dred and fifty pounds, give and grant ah his right and title in and to the said province unto John Usher, of Boston, merchant, his heirs and assigns, but whether it was by way of absolute sale, or way of mortgage, doth not appear ; and the said John Usher did afterwards, in the year 1678, convey the same unto the said corporation, as appears by the printed journal of the house of representatives of that province, which was sent to ipe by Mr. Dummer, their agent. It may, ifly lords, be made a question in law, whether that corporation, which was created by king Charles the First, coy Id legally purchase the said province of Main, inasmuch as the clause of licence does go no further than that they might purchase lands, &c. its any other corporation or body politic in England might lawfully do; and take it to be clear law, that no corporation whatsoever in England can purchase any lands, which shall inure to themselves, unless an express licence for that purpose be inserted, in their charter of incorporation, or otherwise. Your lord-, ships will be pleased to observe, that this corporation is by the charter only subjected to the same Digitized by Google Prerogative abroad.'] Eminent lawyers. ' 113 laws as the corporations in England are; and that there is no licence to purchase lands granted to them by express words, I need not observe to your lordships, that nothing but express words is in law sufficient to take away the king’s prerogative j but, indeed, I should not have made use of any argument of this nature, did I not think the maintaining the royal prerogative, in relation to the naval stores in America, of the utmost consequence to the kingdom; and that, therefore, any advantage in point of law, ought to be taken, which does not injure any private persons, But admitting that corporation was fully enabled to purchase lands, yet that corporation is now extinguished, for the patent 4° Caroli primi was, in the year 1684, reversed in Chancery, by a judgment upon a ^cire facia*, and consequently the province, which was granted to that corporation, and all lands purchased by that corporation, were revested in the crown; and, therefore, the inhabitants of New England can be no otherwise in» titled unto the province of Main, than by some new title, which must have accrued unto them, subsequent to tfieir incorporation by king William, which it is impossible ever should have been, since there is no licence granted unto them to purchase lands in or by their last charter. Their last charter was granted by the late king William, in the third year of his reign, in which charter it is observable, that there is not a variation, in the name i Digitized by knOOQle 114 Opinions of [Of the King's of the incorporation, but in the thing itself. And so for is the old corporation from being revived, that by this charter they are not so much as erected into a corporation, or body politic, so as to be able to sue or be sued, &c.; but the very terms of the charter are, that the king does erect and incorporate the several countries mentioned in the patent into one real province, by the name of our province of the Massachusets-Bay, in New England. It is plain to demonstration, that king William did, at the time of granting this patent, consider all the countries therein named, and particularly the province of Main, as vested in himself, in the right of his crown, and, therefore, he does unite and incorporate all those countries, which were before several and distinct, into one real province, and does then grant all the lands included in that province unto the inhabitants of the province of the Massachusets Bay, in which denomination and grant the inhabitants of the province of Main, &c. are as much included and concerned as grantees, as the inhabitants of that part) of the country, which was originally and singly known by the name of the Massachusets-Bay: all these provinces, therefore, are now to be considered as one; neither is it possible, that one part of the province should be the private property of another. It is true, that the king does grant a power unto the general assembly of the said province, to make grants of lands, uncultivated, lying within ■ the Digitized by knOOQle Prerogative abroad^ Eminent Lawyers. 115 bounds described in and by the charter, biit that grant does noways extend to one part of the province more than another, but is equal to them all; and therefore subject to the last clause in the charter, by which all trees, of the before-mentioned size, are reserved to the crown, and consequently the general assembly of that province cannot make any grant of lands to private persons, without their being subject to that clause of reservation. The act of parliament, Nono Anne, page 387, extends no further than the reservation in the charter does, only that prerogative, which before subsisted singly on the charter, is now confirmed and established, by authority of parliament; and, therefore, upon the whole matter, I am opinion, that the king is legally intitled to all trees of the prescribed size, growing in the province of the Massachusets Bay, as it is described and bounded in the charter of king William, and particularly in the province of Main, excepting only those trees, situated in lands, which were legally granted to private persons before the charter 4Q Caroli Primi was reversed j and which I humbly certify to your lordships, Nov. 12, 1718. Rich. West. (13.) Mr. Fane's opinion on the king's right to the woods in New England. ' To the right hon. the lords commissioners of trade and plantations. My lords. ; In obedience to your lordships’ commands, sig* 1 2 ■ Digitized by Google 116 Opinions qf (Of the King* nified to me by Mr, Popple’s letter of the 21st of June, whereby your lordships are pleased to desire my opinion, in point of law, whether the act, of the eighth year of his present majesty, for the further encouragement of naval stores, and other purposes therein mentioned, whereby it is enacted, for the preservation of white pine trees, for masting the royal navy, that no persons within the colonies of Nova Scotia, New Hampshire, the Massa-t chusets Bay, and province of Main, Rhode Island, and. Providence Plantation, theNarraganset Country, or King’s Province, and Connecticut, in New England, and New York, and New Jersey, in America, shall cut, fell, and destroy any white pine trees, not growing in any townships, or the bounds thereof, under particular penalties, whether this act does, in any manner, take away the right the crown hath expressly reserved to themselves in the Massachusets charter, of all trees, of the diameter of twenty-four inches and upwards, of twelve inches from the ground, growing upon any soil or tract pf land in the said province, not heretofore granted to any private persons. , I have considered the act of parliament, and the Massachusets charter, and I apprehend it can never be supposed, that an act of parliament, made on purpose to guard, by severe penalties, the king’s right and property, in one particular instance* should, by a strained and distant implication, take away and diminish that right, in a matter noways Digitized by GooQle Prerogative abroad.'] Eminent Lawyers, 117 the design, or in the intention, of the legislature. The king, by a general severation in his charter, was td have all trees of such a growth, not expressly given away in townships, or out of them; now the only provision made by the act of the 8th of the king, and that, I think, a very reasonable and necessary one, was to prevent his trees, out of townships, from being ent down; it goes no fur* ther: the danger and mischief was, that such trees, as lay out of townships, might, without any discovery, be cut down and carried away, and therefore the penalty is applied and proportioned to the ease and practicableness of doing it, and the difficulty bf having evidence to convict the offender. This is the scope and design of that clause, and it meddles with nothing else, but leaves the king’s right unimpeached as to trees in townships, which could not, probably, be cut down without the knowledge of the king’s officers, and where there could be ifo likelihood to cut down such trees, being such as, perhaps, were very necessary either for Shelter or ornament. If the words of the act had been, no licence shall be required but for trees growing out of townships, that, perhaps, had made the Case different; but the words are, no person shall fell, cut, and destroy any white pine trees, not growing in any townships, so that the cutting of trees out of townships, without licence, subjects them to the punishment inflicted by this law, whereas the cutting of white pine trees in town* Digitized by knOOQle ns Opinions of [Of the King's. ships makes them now (the act of the 9th of queen Anne being repealed by this act) only liable to an information for the trespass, or an account for the value and profits of the trees, and all the difference is, the king’s property is better secured out of the townships than within them; but still the king’s right to such trees remains, and it has the protec* tion and guard of the common law, not only in giving a remedy for the violation of it, but in preventing all attempts upon it, by that known rule of law, that no implication shall prevail against the crown’s interest and prerogative. July 1g, 1726. Fean. Fane. (14.) The opinion of the attorney and solicitor--general,Vorke, and Talbot, on the king’s right to the woods in New England. To the.right hon. the lords commissioners of trade and plantations. May it please your lordships. . We received a letter from Mr. Popple, written by your lordships’ commands, importing, that in • the charter of Massachusets Bay, granted by king yVilliam and queen Mary, in the third year of their reign, there is an express reservation to the crown of all trees of the diameter of twenty-four inches and upwards, at twelve inches from the ground, growing upon any soil or tract of land in the said province, not heretofore granted to any private persons; that this reservation, in behalf of the crown, is entirely destroyed, by the construction, Digitized by Google Prerogative abroad.'] Eminent Lawyers. lip which the people of New England put upon the 5th section of an act passed, in the eighth year of his majesty’s reign, intitled, an act, giving further encouragement for the importation of naval stores, and for other purposes therein mentioned, whereby it is enacted, for the preservation of white pipe trees, for masting the royal navy, that no persons within the colonies of Nova Scotia, New Hampshire, the Massachusets Bay, and province of Main, Rhode Island, and Providence Plantation, the Nar-raganset Country, or King’s Province, and Connecticut, in New England, and New York, an^ New Jersey, in America, shall cut, fell, and destroy, any white pine trees, not growing in any township, or the boundaries thereof; that the construction they put upon this paragraph is, that trees growing within any township are not the king’s property, and consequently that the surveyor-general of the woods has no power to prevent the people from cutting them for their own use; that in order to prevent this for the future, your lordships desired our opinion, in point of law, whether the words of the fore-mentioned act of parliament can be construed to fake away the right reserved to the crown, by the fore-mentioned charter, of trees, of the diameter of twenty-four inches, at twelve inches from the ground, growing in any township ? We humbly certify your lordships, that we ar^ of opinion, nothing contained, in the said act of parliament, can be construed to take away the right Digitized by )OQle 120 Opinions of [Of the Kings reserved to the crown, by the said charter, as to trees of the diameter of twenty-four inches, at twelve inches from the ground, whether the same tire growing within, Or out of any township, the intention of the said act Appearing to us to be, to make a larger provision, for preservation of white pine trees, than was done by the charter, by prohibiting, under severe penalties, the cutting down such trees growing without the limits described in the act, notwithstanding they might happen to be the property of private persons, and of dimensions different from those described in the charter, without his majesty’s licence; but We conceive, that this is so far from having weakened or prejudiced any particular right, vested in the crown, to such trees, that the same is rather secured thereby: since, if any White pine trees shall be cut down, which shall happen to be both within the reservation of the charter, and the prohibition of the act of parliament, the king may have a new remedy against the offenders, by suing for the penalties inflicted by the act, in the summary method thereby directed, Dec. 23, 172$. P. Yorke, C.Talw, (15.) Of the king's right to mines in hJeto Jersey, by the attorney anil solicitor, Raymond, and Yorke, To the right honorable the lords commissioners of trade and plantations. May it please your lordships, ; In obedience to your lordships’ commands. Sig- Digitized by Goc 2 ‘Prerogative abroad.] Eminent Lawyers. 121 nified to us by Mr. Popple, and requiring us to consider the annexed extract of a letter from Mr. Burnet, governor of New Jersey, dated'the twelfth day of December, one thousand seven hundred and twenty-two, in relation to gold and silver mines, said to be found there, and to report our opinion, in point of law, what right and title is remaining to his majesty, in the said gold and silver mines, and how far the present proprietors have the right, in the said mines, according to their several grants: we have considered the case, as stated ih the said extract of the letter transmitted to us, and have looked into the charter granted to the proprietors of New Jersey, and do certify your lordships, that we are of opinion, that, by the said charter, only the base mines within that province-passed to the grantees, and that the words of the grant are not sufficient to carry royal mines, the property whereof still remains in the crown, notwithstanding any thing, that has appeared to us; but we beg leave to inform your lordships, that we have not heard the proprietors, or any person on their behalf, upon the subject matter of this reference, not being directed by your lordships so to do. Nov. 30, 1723. Rob. Raymond. ' P. Yorke. ' (16.) Of the royal right of escheats in Virginia, by the attorney and solicitor-general, Somers, and Trevor. Digitized by GooQle 122 Opinions of [Of the King's May it please your most excellent majesty. , In obedience to an order of council, hereunto annexed, we have considered of the question, whether escheats in Virginia may be granted before they actually accrue ? And it does appear to uS, that the tenure, by which the lands in Virginia are holden of the crown of England, is in free and common soccage, as of the manor of East Greenwich. The consequence of this tenure is, tha,t where any person dies, without heirs, his land will escheat to the crown, as having the immediate seigniory; and we are of opinion, that escheats of this nature cannot be granted, before they happen, otherwise than by a grant, or alienation, of the seigniory itself, which we suppose is not intended to be done. There are other escheats upon attainder of treason, which are not incident to the tenure, but belong to the crown, (as a prerogative royal,) of whomsoever the land be holden. It seems to us to be very doubtful, whether such royal escheats may, in any manner, be granted before they happen ; but, if that might be done, we are humbly of opinion, that it is not advisable for the crown to part with such a right, and to put the forfeitures for treason in other hands. . J. Somers. ' Taos. Trevor; - Digitized by Google Prerogative abroad."} Eminent Lawyers. 123 (17.) Of the peculiar escheats in New Jersey, which was in the hands of proprietaries, by the at-, torney-general Northey. To the right honorable the lords commissioners for trade and plantations. May it please your lordships. In humble obedience to your lordships’ commands, signified to me by Mr. Popple, junr. your secretary, I have considered of the annexed letter and papers therewith sent, and have perused the letters patent, and surrender, mentioned in the said letter; and am of opinion, that the fines, forfeitures, and escheats, in New Jersey, belong to her majesty, and not to the proprietors of the soil of that colony; for, as to the fines and forfeitures for ofl’ences, they were not granted to his late majesty, king James the Second, when duke of York,’ hy the letters patent granted to him of the Jerseys, and other lands, under which grants the present proprietors claim. And as to the escheats, the whole tract was granted in fee to the duke of York, to be holden of the king in common soccage as of his manor of East Greenwich; and the inheritance of part being granted away, by the assignees of the duke, to other persons in fee, they hold of the queen, and not of the proprietors ; and therefore the escheat must be to her majesty. Digitized by Google 124 Opinions of [Of the King's As to the appointing of rangers of the woods, the inheritance of those woods being in the proprietors, assignees of the duke of York, I am of opinion, the right of appointing rangers in them belongs to the owners of those woods, and not to her majesty. • Oct. 19, 1705. Edw. Northey. ■ (18.) On the escheat of negroes, in Jamaica, by the solicitor-general Mountague. ' . To the right honorable the lords commissioners of trade and plantations. - May it please your lordships. In obedience to your lordships* commands, sig* nified to me by Mr. Popple, junr. in his letter of the 12th of March, I hate considered of the petition of Mr. James Whitechurch, and the several papers thereunto annexed; and in answer to the quart he sends me, from your lordships, whether the limitation of five years possession, mentioned in the act of assembly, for confirming and securing titles to estates, does bind the crown, I do humbly certify to your lordships, that it is my opinion, that the crown’s title is not 'bound by any thing in the said act, because the plea of five years possession is only to bar a plaintiff or demandant that is not a minor, or under coverture, both which disabilities, or rather protections, are in no wise applicable to the person that wears the crown, which Digitized by knOOQle Prerogative abroad] Eminent Lawyers. 12 5 shews the design of the said act to be only to bar such demandants and plaintiffs as are sometimes liable to those incapacities. But notwithstanding the petitioner cannot make title against the crown, by force of that act of assembly; yet Ido humbly conceive the inquisition, which finds the queen’s title, is not valid in law, and consequently Mr. Whitechurch’s right to the negroes, mentioned in the said writ, is not thereby set aside; for the inquisition does not find the negroes, mentioned in the writ, to be the same as Charles Delamain died seised of, but only says, that the jurors do believe them to be the same; and, therefore, since it is asserted that the negro woman, from whom the rest have issued, was many years ago sold to the wife of the petitioner, by the administrator of Wroth Delamain, whose property she was at the time of his decease, for a debt owing, bond Jide, from the said Wroth Delamain, and that the said Charles Delamain was never seised of her, or any of her offspring, which, if true, will take away ad pretence to an escheat, and after so long and uninterrupted enjoyment, every thing ought to.be presumed, that can be thought of, in favour ef the possessor; and since this inquisition was set on foot, in the absence of the petitioner, even when he was out of the isle, after all his papers had been destroyed, by the fire at Port Digitized by GooQle 126 Opinions of [Of the King's' Royal, my humble opinion is, that it will be more for her majesty’s service, to direct a grant to be made ad corroborandum titulum of the petitioner, than to give any countenance to the grant, which brigadier Handisyd has made of the eleven negroes to the provost marshal, and secretary, Mr. Rigby. Jpril 2, 1708. James Mountague. (19-) On the escheat of ambergris, in Jamaica, bp the same lawyer. To the right honorable the lords commissioners of'trade and plantations. May it please your lordships. In compliance to your lordships* desires, signified to me by Mr. Popple’s letter of the 12th of this instant, November, I have perused the extract of brigadier Handisyd’s letter, sent me inclosed in Mr.’ Popple’s letter, relating to some ambergris seized in Jamaica, and the prosecution thereupon,-and am humbly of opinion, that the governor and queen’s council there have done all that by law can be done, for recovery of this ambergris for the queen; for a jury have it in their power, whether they will give a general verdict, or a special verdict, and the most that the queen’s counsel can do, is to desire them not to take upon them the determination of matters, which, in point of law-, are disputable, but find the facts specially. Digitized by GOOQle Prerogative abroad.] Eminent Lawyers.. 127 and submit the points of Jaw to the judgment of the court, and this I understand was done by tlie queen’s attorney-general, and Mr. Brod rick, but the jury refused to give a special verdict, and found generally for the defendant against the queen. This refractoriness in the jury is oftentimes seen in our courts here, in England; and when it does happen, the queen’s counsel are forced to submit, unless they can hope to get a more favourable jury returned, and then indeed they move for a new trial; but in this grand court of Jamaica, I understand it usually goes against the crown, where there is the least shadow for so doing; and therefore I much question whether granting a new trial will be of any avail; in all likelihood, it will only run the queen into greater charges and expences, for which reasons I cannot advise any thing further to be done, than what has been already directed and attempted. Nov. 83, 1709. James Movntague. (20.) On the escheat of lands, and negroes, in Jamaica, by the attorney-general Northey. To the right honorable the lords commissioners of trade and plantations. May it please your lordships. In obedience to your lordships’ commands, signified to me by Mr. Popple, I have considered of the inclosed account of escheats, which your lordships received from the lord Archibald Hamilton, Digitized by knOOQle 128 Opinions of [Of the Kingt with his observations thereon, and 1 do most humbly certify your lordships, that, by an act passed 21st November, 1703, intitled an act for raising a revenue to her majesty, &c., it is provided, that as well her majesty’s quit-rents, fines, forfeitures, and escheats, arising within the island of Jamaica, as the impost and revenue thereby granted, shall be applied and appropriated to the support of the government of that island, and the contingent charges thereof, and to no other use, intent, or purpose, whatsoever; but not to lessen her mar jesty’s power of pardoning and remitting such fines and forfeitures, (and 12501. thereof paid,) and is appropriated to the fortifications. As to the new instruction of the 19th of February, 1703-9, to the governor restraining him from selling escheats, till an account thereof shall be transmitted to Britain, and directions received from thence, I cannot say any thing concerning that complaint, which occasioned it, or how that complaint was supported, having no account of it, except what appears in the order, by which it appears to have arisen from persons, whose titles had been questioned on such writs of escheats, and avoided: their complaints being, as stated in that order, that their titles to their lands and negroes had been so questioned, notwithstanding they had held and enjoyed the same many years, which, if without title, as by the determinations on those Digitized by Google Prerogative abroad."] Eminent Lawyers. 129 writs, it appears to have been, it was not a disturbance or oppression, but a just prosecution for the rights of the crown. Another grievance was, that when, the title of the crown had been established, the escheated estates had been granted to the prosecutors and informers, which I think also not an objection, for they, that had discovered the title of the crown, bad reason to have a preference in purchasing the same, which could not, by the act mentioned in the statute, be for less than they were valued at by the jury finding the escheat; and, in regard, the profits of those escheats are, by that act, (approved by her majesty,) appropriated for supporting the government of that island, which, by the representation, is stated not to be sufficient for that purpose. I do not see any objection against altering that instruction, and per> mitting the governor to sell, from time to time, as he is allowed to do by that act, which hath been confirmed, he being satisfied that the value found is a reasonable value, and remitting accounts thereof, from time to time, to her majesty. . August 6,1713. Edw. Northey. (21.) On the queen’s right of quit-rents, in New York, by the same lawyer. To the first quaere, I am of opinion, the second patent, confirming the grant, and reserving a quit-rent, is to be taken, the quit-rent by the first grant; and, therefore, that must be accounted Digitized by GooQle 130 Opinions of [Of the King* for from the first, grant, the land being charged with it. To the second quicre, I am of opinion, this will be the same as the other, and will ascertain the quitrent, but not discharge the arrears; and the words, in lieu of all other quit-rents, &c. import no more, than that the lands are to be holden under that rent, and under no other rent, service, &c.; and therefore no other duties, &c. but that quit-rent, end the arrears thereof, can be demanded for those lands. Tq the third quaere, I am of opinion, the writ of cessavit is only where a tenure is created by the grant in fee-farm, which could not be by the grants before king James the Second came to the crown, he being a subject; but where there is a tenure, as •by the crown, (the crown not being within the sta« tute of quiaemptores terrarum,) the writ of cessavit lies. However, the statutes of Westminster 2, and Gloucester^ which gave the writs of cessavit, not having been put in practice on the settling that -colony, nor enacted there since, I am of opinion, those laws are not the laws of that colony. • July Sfy 1713. Enw. Northey-. (22.) -Mr. Fane’s opinion on the king’s right to treasure-trove, in the Bahamas. * To the right hon. the lords commissioners for trade and plantations. ' My lords. • . In obedience to your lordships’ commands, sig- Digitized by knOOQle Prerogative abroad.] Eminent Lawyers. 131 nified to me by Mr. Popple, I have considered the two cases mentioned in the letter of governor Fitzu williams, dated the 12th of November last, one, re* lating to the right of administration to John Sim^ a mulatto, who died intestate, leaving a wife, witht out any relations; the other, relating to some treasure found at Providence, by one of the inhabitants : and I beg leave to say, as to the first case; that John Sims, dying intestate, without any relations, the moiety of such estate, which it is stdted he died in the possession of, becomes the right of the crown; the other moiety, his wife will be intitled to, as he left no children. As to the other case, if no person can legally prove a property in the treasure found, it Will be deemed the property of the crown* ’ Feb. 27, 1736-7. Fran. Fane* (23.) The attorney-general Northey’s opinion of the queen’s right to royal fish; at New Fork. The pleading is informal on both sides, for, first, the plea of the defendant, alleging a prescription in the inhabitants of the town of Southton, td take whales on the high seas and coasts of the same, and convert them to their own use, is ill, for although royal fishes may be claimed by prescription, yet a prescription cannot, be laid in the inhabitants, and New York being gained to the crown of England, within time of memory; ho pre* scription can be there against the crown; next the raversing the day and year laid in the informal K 2 Digitized by knOOQle 132 Opinions of [Of the Kin^i tion, and the whales coming to his hands by find* ing, and his conversion, is ill. The prosecutor’s replication is also a mistake, that royal fish cannot be claimed but by grant, and the traverse of the prescription, which should have been demurred to, because.not well alleged. The rejoinder denying the queen, cannot be de* vested but by grant; being taken by protestation is well enough, that being matter of law, and not fact, and joining issue on the traverse of the pre* scription was well, and no occasion for the prose* cutor’s demurrer; however, the plea of the defendant being ill, I am. of opinion, judgment' ought to be given for the queen. . July 30, 1718. Edw. Northey. ($4.) The opinion of the attorney and solicitorgeneral, Ryder, and Murray, on the king’s right to the territory, if Avalon, in Newfoundland, which had been granted to sir George Calvert, in 1623. . To the right hon. the lords commissioners for trade and plantations. May it please your lordships. . Pursuant to your lordships’ desire, signified to us by Mr. Pownall, your lordships’ secretary, in his letter of the 20th of November last, enclosing the copy Of a petition presented to his majesty by lord Baltimore, and referred to your lordships, by order of the lords of the committee of council for plantation affairs, and informing us that, as it appeared to your lordships a matter of great importance, Digitized by knOOQle Prerogative abroad.'] Eminent Lawyers. 133 you desired our opinion upon it; and Mr. Pownall, at the same time, was pleased to send us two books of your lordships’ office, the one containing a representation made by the board of trade to his majesty, in 1718, relative to the state-of Newfoundland ; the other containing a variety of authentic papers, some of which are referred to in the said petition, and which appeared to be necessary for our information upon this occasion, which books and papers are herewith-returned. We have taken the said petition, books, and papers, into our consideration, and we have been attended by lord Baltimore, and his agents, and heard what they had to offer in support of the said petition; as, notwithstanding the determination, in 1660, in favour of the grant in 1623, there is no evidence of any actual possession of the province claimed, or exercise of any powers of government there, by the Baltimore family; on the contrary, it is most probable that, at least from the year 1638, they have been out of possession. And as from the year I669, there have been many proceedings, which appear from the said books and papers, and even an act of parliament, passed in the reign of king William the Third, inconsistent with the right now set up, without taking the least notice thereof, and without any claim or interposition on the part of the Baltimore family; and as the king’s approbation of a governor ought to be in consequence of a clear title of proprietorship, we Digitized by GOOQle 1'34 Opinions of ■ ■ [Of the King’s are humbly of opinion, that it is not advisable for his majesty to comply with the said petition. April 5, 1754. D. Ryder. W. Murray. (25.) The opinion of the attorney-general Harcourt, on the queen's right of 'escheat, to an estate in Jamaica. My lord. In obedience to your lordships’ commands, I have perused an act, passed in' Jamaica, to enable Cary Bodie, and others, to sell lands, &c. and am humbly of opinion, that act is not fit to be conirmed. The act recites, that king Charles the Second granted two parcels of land, containing one thou* sand one hundred acres, and four hundred acres, to Dorothy Bannister, and her heirs for ever; and that Dorothy Bannister conveyed the same to Dorothy Wait, and her heirs for ever; and that Dorothy Wait afterwards married with Theodore Cary, esq. The act likewise recites, that king Charles the Second granted five hundred acres of land to-Theodore Cary, and his heirs, and that Theodore Cary died without heirs; and that king James the Second, by his letters patent of escheat, dated the 14th day of January, in the fourth year of his reign, granted to Dorothy Cary, and John Bodie, and their heirs, the said five hundred acres. The act likewise recites, that John Bodie inter- Digitized by knOOQle Prerogative abroad.] Eminent Lawyers. 135 married with Elizabeth, the grandaughter of the Said Dorothy Cary,’ and had issue by her (Cary) John and: Thomas, and that Dorbthy Cary, by her will, gave to John and Thomas six hundred pounds tach, at their ages of one and twenty, and all the /Ost of her estate, lands, tenements, &c. to the said Cary Bodte for his life, and to the heirs of his body, lawfully to be begotten, with such remainders over in default of issue of Cary, as in the will are mentioned. The act likewise recites, that John Bodie, the father of the said Theodore, had contracted great debts, in endeavouring to improve the estate; add that Cary Bodie, by reason Of the entail in Dorothy’s will, could not sell, without an act of the assembly for that purpose; and, thereupon, trustees are appointed to sell one thousand one hundred, four hundred, and five hundred acres, and the purchasers are, by the act, secured in the enjoyment thereof. This act I take to be liable to the fl>116Wing objections: Pit; The five hundredacresare recited to have beeii escheated to the CrOWn, oil the death of Theodore -Cary, without heir, and the grant thereof, by king James, is mentioned to be after his abdication, viz. on the 14th day of January, in the fourth year of hrs reign. If nd sufficient grant has been made since the escheat, the title' remains still in her majesty'. ... : ' " ^d. Supposing Dorothy Caiy to have a good Title, and the (hree.severttf parcels weH devised by Digitized by GooQle 13$ Opinions of [Of the King1! her will, yet I see no necessity for an act of assem* bly to enable Cary Bodie to sell 5 for though the first words in her will devised the estate to him during his life only, yet the immediate follow* ing words (and to the heirs of his body lawfully to be begotten) enlarge bis estate, and make him tenant entail, and consequently fie has a power to sell, without the aid of an act, 3d. I conceive the want of a saving clause in this act to be a further objection against her majesty’s approving the same, July 12, 1707, Sim. Harcourt. (26.) The opinion of Mr. Jackson on the king’s right to the white pine-trees growing on the Kenne-beck River, To the right honorable the lords commissioners for trade and plantations. May it please your lordships. . In humble obedience to your lordships’ com* mands, signified to me by Mr. Pownall’s letter of the 16th instant, I have taken into consideration the paragraph extracted from a letter of the sur* veyor-general of his majesty’s woods, in America, inserted therein, together with the two law reports accompanying the same. The paragraph states a claim made by the pro* prietors of an extensive tract of land upon both sides of Kennebeck River, on which there is an abundant growth of the best pine timber, and which tract the proprietors allege to be private property; not, as I Digitized by Google 'Prerogative abroad.] Eminent Lawyers. 137 conceive, because it is parcel of the province of Main, (within which only part of it lies,) but because it is not the property of the province of the Massachusets Bay, nor indeed of any other corporate body, but is the property of a set of private parties. I have likewise considered the question stated in Mr. Pownall’s letter, namely, whether, by the provisions of the statute of the second of George the Second, Cap. 35. white pine-trees,ofthediameter of twenty-four inches or upwards, at twelve inches from the ground, growing upon any tract of land, possessed under a grant of the council of Plymouth, may or may not be felled, without a licence from the crown: and am humbly of opinion, that in case the soil or tract on which such white pine-trees grow was private property before the 7th of October, 1690, they may be cut without a licence from the crown, notwithstanding any provision of the statute of the 2d of George'the Second. That act appears to me to have been intended to obviate the doubt that gave occasion to the question stated in 1726, to the then attorney and solicitor-general for their joint opinion, whose answer is contained in one of the reports transmitted to me: that doubt arose upon the 8th Geo.I, which was alleged to amount to a release of the crown’s right to part of the reservation contained in the charter of the Massachusets Bay. This doubt is Digitized by GooQle 138 Opinions of [Of the King’s now totally removed, and the single question that can occur on the 2d Geo. II, is, whether the soil in question was actually private property, before the 7th of October, 1690, not whether it is within, or not within, a township. The claim of the Kennebeck company (die pro* prietors mentioned in the surveyor-general’s letter) is founded on a grant from the council- of Ply-inouth, long antecedent to the 7th October, 1690, and I am Uierefore of opinion, that in case their title be well derived, (of which I do not pretend to judge,) they are exempt from the penalties of the 2d Geo. II. I should have been inclined to think so, had that company been a corporation, but this is not now the question, as they are a mere partnership. But I think it my duty to remark to your lord-' ships, that although white pine-trees, growing upon the soil possessed by private persons, under a grant of the council of Plymouth, are not the objects of preservation under the 2d of Geo. II j yet, in case they do not grow within the limits of some tow’nship, they seem to come within the provisions of the 8th of Geo. I. cap. 12. Muy 23, 1771- Rich. Jackson. (27.) The opinion of the same counsel on the construction of the S Geo. I. for the preservation nion, whether his majesty can, by virtue of his prerogative, and without the assistance of parliament, gratify the said colony in their request ? I have considered of the same, and beg leave to observe to your lordships, that I cannot pretend to say whether the king, by virtue of his prerogative, can do.what is desired by the petitioners. But I must submit it to your lordships* consideration, supposing the king had a power, by his prerogative, of gratifying the request of this colony, whether, under the circumstances of this case, it would not be more for his majesty’s service to take the assistance of parliament, as that method will be the least liable to objection, as well as the most certain and effectual manner of gratifying the request of the petitioners ? . Nov. 24, 1730. . Fran. Fane. (4.) The opinion of the attorney and solicitorgeneral, Ryder, and Murray, on the king’s right to make new grants of land, in New Hampshire, New Hampshire.—State of the case with respect to- certain townships and tracts of land granted by the governments of the Massachusets-Bay, and Connecticut, in New England, which townships and tracts of land, are now part of the province Digitized by GooQle Prerogative abroadiy Eminent Lccicyers. 147 of New Hampshire, by the determination of the boundary line between that province and the province of the Masachusets-Bay, in the year 1738. . Disputes having, for a long time, subsisted between the provinces of the Massachusets-Bay and New Hampshire, with respect to their boundaries^ in 1733, a petition was presented on behalf of the province of New Hampshire, praying that commissioners might be appointed to ascertain the boundaries. . ' Upon hearings of both parties before the attorney and solicitor-general, the board of trade, and the council, his majesty was pleased, by his order in council of the 9th of February, 1736, to direct that a commission should be prepared, and pass under the great seal, authorizing commissioners to mark out the dividing line between the provinces of the Massachusets-Bay and New Hampshire, giving liberty to either party therein, who thought themselves aggrieved, to appeal therefrom to his majesty in council. In pursuance of his majesty’s said commission, commissioners met and reported their determination specially, upon which both provinces appealed to his majesty in council; and afterwards their lordships reported, to his majesty, as their opinion, that the northern boundaries of the Massachusets-Bay are, and be, a similar curveline, pursuing the course of Merimac River, at three miles distance from the north side thereof, beginning at the Atlantic Ocean, and ending at a point 1 2 Digitized by knOOQle 14S Opinions of [Of the King's due north of a place in the plan returned by the said commissioners, called Pantuket Falls, and a straight line drawn from thence due west, crossing the said river till it meets with his majesty’s other governments; and that the rest of the commission* ers said report, or determination, be affirmed by his majesty* In 1738, his majesty was pleased* with the advice of his privy council, to approve of their lordships’ report* and to confirm it accordingly, in consequence whereof the line has been marked out. , In the years 1735, and 1736, while the appeals from both the Massachusets-Bay and New Hampshire were depending before his majesty, the general assembly of the Massachusets-Bay granted above thirty townships between the rivers Meri-mac and Connecticut, which townships, upon the running of the boundary line in 1738, fell within the province of New Hampshire: the conditions of these grants were, that the grantees should settle the said townships, within three years, after the date of their respective grants ; but this condition has been performed by very few, if by any, of the grantees, no obligation to pay quit-rents, or a reservation of pine trees, fit for the service and supply of his majesty’s navy, are inserted in any of these grants, although no grant ought, in good policy, to be made of any lands, in any part of North America, without both these provisions, which have been thought qf so much importance, and so ab- Digitized by Google Prerogative abroad.] Eminent Lawyers. 149 solutely necessary, for the public service, that Mr. Wentworth, his majesty’s governor of New Hampshire, was particularly instructed, in the year 1741,. never to pass any grant of lands, without enjoin* ing express conditions of cultivation, the reservation of quit-rents, and the preservation of such pines, as are of size for the use of his majesty’s navy. There are also about sixty thousand acres of land, situated on the west side of Connecticut river, which were purchased by private persona from the government of Connecticut, to whom that land had been laid out by the government of the Massachusets-Bay, as an equivalent for two or three townships, which the Massachusets-Bay purchased from Connecticut government: this tract of land, by the determination of the boundary line in 1738, is become a part of New Hampshire, but the proprietors of it are subject to no conditions of improvement, and the land lies waste and uncultivated. Question.—Whether the crown can resume the lands granted by the province of the Massachusets-Bay, under condition of cultivation, those lands being now become a part of New Hampshire, by the running of the boundary line in 1738, in cases where the proprietors have not performed the condition of their grants; and if the crown can, what is the most advisable an regular method of making such resumption ? Whether, in the case of the Digitized by GooQle 150 Opinions of \Ofthe King^t lands granted away by the province of the Massa-chusets-Bay, to particular persons, without any condition of cultivation, the crown can now enforce the proprietors of such lands to cultivate them, or oblige them to take these lands under fiew grants, upon the said lands being made a part of the province of New Hampshire,-by the determination of the boundary line, in 1738 ? • We are clearly of opinion, the crown may resume the lands granted, on condition of settling Within three years, where there has, in fact, been no settlement. With regard to lands granted by the Massachusets-Bay, without any such express condition, where there has been no settlement, as they appear now to have been no part of that province, their grants are in themselves void, as against the crown, and there appears no ground to support them, but on the foot of the direction, which we fihd to have been given in an order of council of the 22d of January, 1735, when the commission, for marking the dividing line between the two provinces, was first directed, viz; that due care should be taken, that private property might hot be affected by it. We do not find that this direction was continued either in the order of the 9th of February, 1736, on which the present commission issued, or in the commission itself; or that the commissioners have, in their report, taken notice of any such private rights, or that they are saved in the final order of council, that establishes Digitized by C ■Prerogative abroad."] .Eminent Lawyers. 151 the boundary line. However* considering the manifest intent of these sort of grants, whether appearing from the general nature, or the particular recitals or considerations of them; that the country may be settled and inhabited, and the tacit condition attendant on them; that the lands should be settled in a reasonable time, we think due care will be taken of the private property arising from these grants, if his majesty shall be pleased to give these sort of proprietors a reasonable time to come in, and accept of new grants, upon terms of settling the lands within a certain time, reserving the old quit-rent, and pines fit for his majesty’s navyj and in case of their not accepting these terms, his majesty may resume the lands. The proper manner of making such resumption; after such default, is, by making new grants to such as shall be willing to accept them, at such rents, and on such terms as shall be thought most advisable. August lb, 1752. D. Ryder. W. Murray. (5.) The opinion of the attorney-general, Yorke, on the manner of discussing objections to the king’s grants. ■ Sir. Lincoln’s Inn, Dee. 23, 1725. I received your letter to Mr. Solicitor-general, and myself, reminding us of the reference from the lords commissioners of trade and plantations, upon the papers transmitted by major Drisdalej Digitized by knOOQle 152 Opinions of [Of the King’s lieutenant-governor of Virginia. We have long ago considered those papers, so far as it was possible for us to do, ‘without being attended by the agents of parties concerned; but a caveat having been entered in my office, on the behalf of colonel Spotswood, who claims a property in the matters in question, against any report being made without his being heard, according to the common course of proceeding, no report could be made till he had an opportunity of laying his objections before us. The method of doing this is, for the agent of the province to summon the party entering the caveat to attend, to make out bis objections at a time appointed, and then both sides may be heard, or if nobody attends on the behalf of the person entering the caveat, a report will be made ex parte, The want of doing this has occasioned the delay, for the agent of the province has never applied for a report, or for a summons, to call colonel Spotswood, or his agent, before us? I do not mention this so as to blame the agent, for any neglect, for it does not appear to me, that he has received any orders from his principals concerning this affair; but if you know where to send to him, I beg you would direct him to call at my chambers, in order to summon colonel Spotswood, or his agents, to attend upon his caveat, and then this matter may soon be brought to a conclusion. You will be pleased, to lay this letter before the lords commissioners, that their lordships may be apprized Digitized by knOOQle Prerogative abroad.] Eminent Lawyers. 153 of the reasons why they have not received our report before now. P. Yorke. .(6.) The opinion of the attorney, and solicitor-general, Yorke, and Talbot, on the question between the king, and the proprietor of the Northern Neck, in Virginia. ■ To the right hon. the lords commissioners for trade and plantations. . May it please your lordships. In obedience to your lordships’ commands, signified to us, by a letter from Mr. Popple, referring us the state of the case, between his majesty, and the proprietors of the Northern Neck, in Virginia, together with the copies of two charters, granted by king Charles the Second, and king James the Second; and a letter from major Drisdale, late lieutenant-governor of Virginia, hereunto annexed; we have considered the same, and the queries proposed in the said letter. The first of which queries is, What shall pass by the grant of felons’ goods, in the said letters patent, of king James the Second, and whether the goods of a felo de se shall not pass thereby? As to which, we are of opinion, that by the grant of felons’ goods, all goods in possession, belonging to any felon, convicted, which are within the district, described in the grant, do pass; but it Digitized by LjOOQle 154 Opinions of [Of the King's hath been determined, that those words do not extend to any debts, or rights of action, nor to any leases for years, or other chattels, real, belonging to such felon, nor to any goods, or chattels, whatsoever, of a Jclo de se. The second question is, Whether fines imposed by the king's court, upon persons residing within the said territory, for contempt, or otherwise, shall not pass by the said letters patent, and what fines shall pass thereby ? As to this, we are of opinion, that no other fines pass thereby, but such as are imposed by the king’s courts, held within the said territory ; the fines imposed at the courts, let of the grantees, are expressly granted to them, by the letters patent of king Charles the Second, and the fines imposed by the king’s courts, held without the said territory, cannot with propriety be said to arise, or accrue, with the same. The third question is, What shall pass by the word forfeitures in the said letters patent? As to this, we are of opinion, that all goods and chattels, real, and personal, in possession, being within the said territory, and forfeited by reason of any judgment, or conviction, for misdemeanor, or felony, and all interests in any lands, lying within the said territory, forfeited to the crown, by any attainder of felony, do pass by the word forfeitures; Digitized by GooQle Prerogative abroad.] Eminent Lawyers. 155 but this word is so general arid extensive, and the cases, which may arise upon it so various, that it is impossible to give an opinion thereupon, which may answer every event, without having the particular facts stated. The only question contained in major Drisdale’s tetter is, How far the governor of Virginia may exercise the authority, given him by his majesty, in pardoning offences, and remitting forfeitures, arising in the Northern Neck ? As to which, we are of opinion, that nothing contained in the said letters patent, restrain him from exercising the authority of pardoning such offences, and if the pardon be granted before any forfeiture incurred by judgment, in cases of misdemeanor; or by flight, conviction, or judgment, in cases of felony, the pardon will prevent any forfeiture ; but if the pardon be granted, after the for. feiture, actually incurred by any of the means aforesaid, though the offence will be thereby discharged, the right of the grantees, to the things forfeited, will continue. 12/A Jugust, 17^7. P. Yorke. C. Talbot. (7.) The opinion of the attorney, and solicitor, Hyder, and Strange, concerning the grants of lands, in Carolina, before, and after, the purchase, by the king, qf the proprietors’ rights. , 1st. Quare.—-Whether any of the patents grant- Digitized by Google 156 Opinions of [Of tht Kings ed, after their lordships had ordered the land-office to be shut up, can be deemed valid, other than such ds were granted by order in London ? We are of opinion, that such patents may be good, notwithstanding that order to shut up the land-office; if the lords proprietors were either made privy to those grants, or after they were made,, received the consideration for them1—otherwise we think they cannot be supported. ' 2d.—Whether such patents, as were granted, after the king’s purchase, by the lords proprietors governor, before the new governor arrived from the crown, particularly such as appears to have been entered, in the secretaries books, after advice received, in the province of the king’s purchase, are to be deemdd good ? , , We are of opinion, that none of the patents, mentioned in the second quare can be deemed good. . 3d.—Whether, as the act of parliamentmade upon the crown’s purchase, from the lords proprietors, that clause in it, that was for quitting possessions of grants, takes notice of such only, as bore date before 1727.—If it does not give room, for a strict examination into all such as were issued, subsequent to tl>at time, and if such grants appear to have been irregularly made, they ought not to be voided, but as to such as were granted, for defraying the expence of running the boundary line, if the crown, in such case, ought not to bear that expence ? Digitized by Goode Prerogative aSroad.] Eminent Lawyers. ' 157 We think it proper to observe, that the clause referred to, in this qucere, does not put it upon the patent’s bearing date, but being actually made, before 1st January, 1727; and considering the extraordinary circumstances attending these grants, and that the crown had no notice of them, at the time ef the purchase, there is great reason for a strict inquiry into the validity thereof, and to avoid them, for such irregularities. But as those that were granted, for defraying the expence of the boundary line, seem to stand in a much more favourable light, we think it reasonable some indulgence should be shewn to such purchasers, by re-granting on the terms of the purchase, what they, or their assigns, have actually cultivated, and by repaying a proportion of the consideration money for the rest. - 4th.-—Whether such patents as were drawn up, and signed with blanks, and not registered in the secretaries office, for some years afterwards, shall be deemed good, and if their not being registered, is not an evidence of fraud ? We are of opinion, that in general, such patents as were executed with such blanks, as are mentioned in the case, though filled up afterwards, are void ; but if they have been attended with a long possession, and not obtained fraudulently, or irregularly, in any other respect, we think they ought to be now supported : and as to the circumstance of not being registered in the secretaries office, for Digitized by knOOQle HS Opinions of [Of the Kings due north of a place in the plan returned by the said commissioners, called Pantuket Falls, and a straight line drawn from thence due west, crossing the said river till it meets with his majesty's other governments; and that the rest of the commissions ers said report, or determination, be affirmed by his majesty* In 1738, his majesty was pleased, with the advice of his privy council, to approve of their lordships’ report, and to confirm it accordingly, in consequence whereof the line has been marked out. . In the years 1735, and 1736, while the appeals from both the Massachusets-Bay and New Hampshire were depending before his majesty, the general assembly of the Massachusets-Bay granted above thirty townships between the rivers Meri-mac and Connecticut, which townships, upon the running Of the boundary line in 1738, fell within the province of New Hampshire: the conditions of these grants were, that the grantees should settle the said townships, within three years, idler the date of their respective grants; but this condition has been performed by very few, if by any, of the -grantees, no obligation to pay quit-rents, or a reservation of pine trees, fit for the service and supply of his majesty’s navy, are inserted in any of these grants, although no grant ought, in good policy, to be made of any lands, in any part of North America, without both these provisions, which have been thought of so much importance, and so ab- Digitized by Google Prerogative abroad.} Eminent Lawyers. 14J solutely necessary, for the public service, that Mr. Wentworth, his majesty’s governor of New Hampshire, was particularly instructed, in the year 1741,. never to pass any grant of lands, without enjoin* ing express conditions of cultivation, the reservation of quit-rents, and the preservation of such pines, as are of size for the use of his majesty’a navy. There are also about sixty thousand • acres of land, situated on the west side of Connecticut river, which were purchased by private persona from the government of Connecticut, to whom that land had been laid out by the government of the Massachusets-Bay, as an equivalent for two or three townships, which the Massachusets-Bay purchased from Connecticut government: this tract of land, by the determination of the boundary line in 1738, is become a part of New Hampshire, but the proprietors of it are subject to no conditions of improvement, and the land lies waste and uncultivated. . Question.—Whether the crown can resume the lands granted by the province of the Massachusets-Bay, under condition of cultivation, those lands being now become a part of New Hampshire, by the running of the boundary line in 1738, in cases where the proprietors have not performed the condition of their grants; and if the crown can, what is the most advisable an regular method of mak> ing such resumption ? Whether, in the case of the Digitized by knOOQle 158 . Opinions of [Of the King**. some year? afterwards, it not being stated how far, or within what time, such registry is necessary to the validity of such grants, nor for how long it was neglected; we cannot form any judgment, what influence that will have upon the patents. 5th.—Whether such patents as were given out, without any description of the boundaries, and not preceded by regular surveys, returned into the secretaries office, are to be deemed valid. We are of opinion, that the want of a description of the boundaries, or of preceding regular surveys, is not, of itself, sufficient to destroy such patents, unlesssuch circumstances were the known requisites, necessary to such grants, and even in that case, if the proprietors have had the consideration, and the lands have been enjoyed, accordingly, without fraud, we think such grants ought to be deemed valid. 6th.—Whether those grants, issued by virtue of warrants, that had lain by many years, are to be deemed good, notwithstanding the grants, assigned them, were taken out irregularly, and particularly those after 1727 ? We are of opinion, that the circumstance of there having been warrants, many years before the grants issued, is not, of itself, sufficient to support grants, that would otherwise be irregular and void, though upon the general question of fraud, that circumstance may probably be of service to the grantees, according to the particular circumstances of Digitized by Google Prerogative abroad.] Eminent Lawyers. 159 each case, whether such grants issued before, or after, the year 1727. 7th.—As it is alleged by the governor, that many of the people, that hold lands by virtue of the patents, formerly granted under the lords proprietors, possess much greater quantities than they ought to hold, by the words of the said grants, has not the crown a power to re-survey such lands, and in case any frauds should appear, what steps must the crown take to recover its right ? We are of opinion, that whoever possesses a much greater quantity, than they ought to hold by the words of a grant, made since 1st January, 1727, is liable to have the same re-surveyed, on behalf of the crown. But as to grants, made before 1727> upon surveys actually made, we apprehend (if they were otherwise good in law) they are excepted by the act 2 Geo. 2. out of the sale to the crown, and therefore not liable to be now re-surveyed ; and as to such cases, wherein a re-survey is proper, and yet the grants are valid in law, we are of opinion, that the proper remedy is by information, in the name of the attorney-general, of the province, in a court of Equity there, in order to have the real quantity set out, and the excess pared off, for the benefit of the crown. 8th.—In case any of these grants appear to be voidable in law, what is the proper method to have the same vacated ? . We are of opinion, that the proper method for Digitized by Google 160 Opinions of [Of the Kinft the crown to recover its right, (except in the in* stances mentioned in the answer to the last quatre) is by an information of intrusion, in the proper court of the province, and in case of error there, by appeal to' his majesty, in council. February 11th, 1737- D. Ryder. ‘ . ■ J. Strange. (8.) The opinion of the attorney, and solicitorgeneral, Yorke, and Talbot, on grants, that are void, for uncertainty. • To the right hon. the lords commissioners for trade and plantations. May it please your lordships. In obedience to your lordships’ commands, signified to us by letter from Mr. Popple, informing us, that your lordships having had under your consideration several papers relating to the settlement of Carolina, and observing that some grants were made, by the late lords proprietors, of large tracts of land, without any limitation therein, as to the place where, or time when, the said land is to be taken up, and seated, and transmitting to us the enclosed copy of a grant, of that kind, made to sir Nathaniel Johnson, in 1686, which hath never yet been put in execution, together with the inclosed copy of the original grant, from the crown to the lords proprietors of Carolina, for our further information, and desiring us to consider the same, and report our opinion in point of law, whether such grants are legal and of force; we have considered Digitized by Google Prerogative abroad.] Eminent Lawyers. 161 the patent, whereby the sail} lord* proprietors did-grant to sir Nathaniel Johnson, the hopper and dignity of a Cassique, cum duabys baroniis quorum singula contineat duodecim ipille acrqs terr#, Ahd are of opinion, that, ip regard, the. place where the spid lands lie, is not described, nor any method provided, by, vyhiph the same may be pertained, such grant of tjie two baronies is, by reason of the uncertainty thereof, absolutely void ip law* July 28th, 1730- J?. YpR^E.- £ Talbot. (9.) The opinions of Mr. Fane; and of the attorney and solicitor-general, Willes, and flyder, on the question of patenting lands, under old grants, from the proprietories qf Carolina. To the right bon. the lords compjissi^efs for trade and plantations. My ;lords. In obedience to your lordships’ conamands, signified to ipe by .Mr. Popple, desiring my opinion* in point of law, whether the townships of Purrys-borough, in Carolina, being, pursuant to his ma? jesty’s instructions, set out for the use of certain people; and his majesty having declared, th^t al| the land, within six miles thereof, shall not he taken, up by any person, claiming a right under old grants, which have not been taken up, shah not he deem? ed such an effectual taking up of the said lands, for hip majesty’s use, as to invalidate the claim pf any M Digitized by knOOQle 162 Opinions of ■ [Of the Kings person, who shall, subsequent to the said instructions, and proclamation, take up land there; and I humbly certify to your lordships, that, I think the grantees of the late lords proprietors, under the general power granted to them, of taking up'such quantities of land, in such places as they shall think fit, since they neglected to do it, previous to his majesty’s instructions, and declaration, shall not now be permitted to pitch upon lands already settled, but-must have the effect, and operation, of their grants upon lands, now unsettled. July 23d, 1734. Fran. Fane. The grant being general of 12,000 acres of land, and the same being not described therein, nor ascertained by any survey, before the proclamation of governor Johnson, we are of opinion; that such grantee cannot now take up lands, within six miles of Purrysborough. For the rights of the lords proprietors, is now vested in the crown, and such general grant could certainly not have prevented the lords proprietors, from making subsequent grants, of any particular lands,provided there was still sufficient land left to satisfy such precedent grant; andyet this would be the necessary consequence, if such •general grantee might at any time, before his lands are let out, take them wherever he pleases, and disturb the possession of any subsequent grantee. This would not only be a great invasion of his majesty’s right> but would create very great confusion, Digitized by knOOQle Prerogative abroad.} Eminent Lawyers. 103 and would tend very much to the disturbance ofthe peace of the country. August Y2th, 1734. . J. Willes.; D. Ryder, (10.) The opinion ofthe same lawyers, on the nul. lity of a similar grant to Mr. Hodgson. ■ To the right hon. the lords commissioners for ■trade and plantations. ' . ' May it please your lordships. - In obedience .to your lordships* commands, sig* jiified to us by Mr. Popple, we have considered the 'letters patent (a copy of which you was pleased to lend us) from the late lords proprietors of Carolina, .in 1715, to William Hodgson, esq., and we are of opinion,’ that the words are too. general to pass .lands, and that Mr. Hodgson hath no right to any land in Carolina, by virtue of the said patent. . November 2Mh, 1735. J. Willm. D. Ryder. (11.) The opinion of Mr. Fane, on the validity f .the grant of the secretary’s office in South Carolina. To the right hon. the lords commissioners for trade and plantations. • My lords. . In obedience to your lordships* commands, signi-fled.to me by Mr. Hill, I have considered the case of Mr. Hammerton, relating to his claim of the office of registrar of the province of .South Carolina, and I beg leave to say, that I think, he is well intitled to it, by virtue of his grant from the crown; M 2 Digitized by knOOQle 164 Opinions of [Of the King'e ind, notwithstanding, there does not appear to be any commission of registrar granted by the lords proprietors, till the year 1700, yet as the acts of 1694, and 1698, have directed what is to be done by such an officer, I think it is very probable that such an officer was appointed, before, or at the tifae, those acts were passed. I think, therefore, it appears to be an ancient office, and held and 'exercised by the secretary, during the lords proprietors* tittie; and by the acts of 1694, and 1698, it was his duty to register all patents, and grants, for lands, vdles, conveyances, and mortgages, of land, and all .Other writings, that were required to be registered. By the grant of the lords proprietors to Mr. •Bettie, in 1725, he is impoweredto do,andperform, UOt only the particular matters and things therein mentioned, but also all other acts usually done by the termer secretaries. The present grant, to Mr. Hammerton, pursues the very words of Mr. Ber-tie’S grant, us to the description of the office, and empowers the grantee, not only to do, and perform, ithe several matters and things therein particularly specified, but also all other acts usually done by the former secretaries; and it appears by the papers -referred to ine, that the whole business of registrar, and secretary, was exercised by the secretary without any molestation, from 1700, till Mr. Johnson was appointed, in 1753. This being the case, I think Mr. Hammertion is intitled to hold, and enjoy, lus grant, in as full an extent as any ofhis pre- Digitized by GooQle Pnregotiw abroad.) Eminent Lawyers. 16^ decessors have done, in the time of the lords proprietors. June 8th, 1739. Fran. Fane. (12.) The opinion of the attorney-general Willes, on the right of the proprietor of Maryland, to appoint to offices, under the king’s charters. ' Queers 1.—'Whether by the charter of Maryland, the lord proprietor has not a right to the nomination of all officers in general, civil, as well as military? . Answer,'’--! am of opinion, that by the charter of Maryland, the lord proprietor has a right to no-minaie and appoint all officers, in general, as well civil as military. ; . Qutere 2.—Whether there is any thing particular .in the nature of the office of treasurer, of ejthgr shore, to exempt it from the said nomination ?.' . Answer.'—It does not appear to me, that there is any thing so particular in the nSttweHof tire office of treasurer, of either Shore, as to take the right pf nomination to this office, from the lord proprietor, and to give it to any other persons. Queers 3.—Whether a few precedents in this case, of a treasurer being appointed, by the tripartite concurrence of both houses of assembly, and the governor, can, or do, overthrow his lordship’s right ? Answer.—All the precedents, except one, being . between 1692, and 1716, when my lord Baltimore was .out of possession, I am of opinion^ that they Digitized by knOOQle 166 Opinions Of [Of the King's will not overthrow his lordship’s right,founded upon such plain words in the charter. Quaere 4.—Whether the precedents, hereunto annexed, do divest the lord proprietor of his right of noinination to the office of treasurer or treasurers, so nominated, they giving the security the lawdirects? Answer.—The treasurer, or treasurers, when nominated by the proprietor, must give such security as the law directs. To the other part of this quaere, I have given an answer already. January i2d, 1736-7. J. Willes. Fourthly.—Of an anomalous exclusion of the ling’s right of granting a colonial office. (1.) The opinion of the solicitor-general Mountague, on the exclusive right of the governors, to appoint naval officers, • Sir. Whitehall, June 11, r70S. Her majesty having been pleased to refer to the lords commissioners of trade and plantations, a petition from Mr. Samuel Cox, complaining of his having been turned out of his place of naval officer, in Barbadoes, by Mr. Crow, governor of the said island, and praying to be restored to his said place, their lordships have commanded me to send you the inclosed papers, viz. , A clause in an act of parliament, passed in. the 15th year of the reign of king Charles the Second, intjtled an act for the encouragement of trade. . Digitized by LjOOQle Prerogative abroad.] Iwinent Lawyers. 167 A clause in an act of parliament, passed in the seventh and eighth years of his late majesty*s reign, intitled an act for preventing frauds, and regulating abuses in the plantation trade. Copy of a clause in her majesty’s instructions to Mr. Crow, relating to the acts of trade and navigation. Copy of a clause in Mr. Crow’s instructions, relating to the government of Barbadoes. Upon consideration of which papers, their lordships desire your opinion, whether, by the forementioned acts, the power of appointing the naval officer be vested solely in a governor of the plantations, exclusive of the crown ? In case the sole right be in the governor, yet the said office being filled by virtue of letters patent, from the crown, granted, and enjoyed, during the time of two preceding governors, which is the case of Mr. Cox, the petitioner: quare, whether the present governor can dispossess him of the said office, without any crime, or mismanagement, allege^ against him ; or whether the right of the governor accrues only in case of vacancy, during his government. W. Pojpple, jun. • My lords. July 13th ,170& In obedience to your lordships’ commands, signified to me by Mr. Popple, the 11th of Jpne last, I have considered the several clauses in the acts of parliament, made the fifteenth year of king Charles Digitized by knOOQle 163 Opinions of (Of the King's the Second, for encouragement of trade, and the seventh and eighth years of his late majesty king William, for preventing frauds, and regulating abuses, in the plantation trade; and I have perused the clauses in her present majesty’s instructions to Mr. Crow, relating to the acts of trade and navigation, and to the government of Barbadoes. And in answer to the first qucere your lordships have made thereupon, Viz. whether, by the afore-inentioned acts, the power of appointing the naval officer be vested solely in a governor of tpe plantations, exclusive of the crown, my humble opinion is, that since the statute of the fifteenth of Cha. lid. does expressly require all blasters of ships, coming to the plantations, to make known their arrival, and give in an inventory of their goods to the governor there, or such officer as shall he, by him, hereunto authorised and appointed, before any goods be unladen, that the appointment of this officer, who is now called the naval officer, does solely belong to the governor of such plantations; and therefore, if the crown constitute a person, to execute this office, and the governor appoint another person, I think all masters of ships will be obliged to apply to the naval officer appointed by the governor, and the patentee will not be, tn such case, empowered to do the things required by such olficer, mentioned in the said act of parliament* ' This being my opinion, concerning the authority Digitized by GooQle Prerogative abroad.} Eminent Lawyers. 169 such officer has, when constituted as before is Mentioned, I hold consequently, that the said office can never be said to be full, by virtue of letters patent from the crown, which is the answer I return to the second quaere. ' And to the third quaere, I beg leave to say, that I do not think the present governor can be said to ■ have dispossessed Mr. Cox of the said office, by appointing a naval officer; because if Mr. Cox was hot appointed by the governor, he never was the officer Mentioned in the act of parliament, who is described to be one that is authorised, and appointed, by the governor; but in regard the governors of the plantations are put in by the crown only, during pleasure, I take it for granted, no one will make any difficulty in appointing such naval officer, as the crown shall best approve of. J. Mountague. Fifth.—Of the king’s general jurisdiction over his territories abroad. • (1.) The opinion of the attorney and solicitorgeneral, Baymond, and Yorke, on the king’s power to establish a civiljurisdiction at Gibraltar. To the right honorable the lords of the commit, tee df his majesty’s most honorable privy bouncil, May it please yoUr lordships. In humble obedience to your lordships’order, of the 25th day of July last, referring to us a petition Digitized by GooQle 170 Opinions of [Of the King's of several merchants and traders to the town and garrison of Gibraltar, for establishing a court of civil judicature there, and commanding us to consider thereof,and to prepare a draft,or proper heads, for the forming a scheme for establishing the same, and to present the same to your lordships for your consideration, we have considered the said petition, which sets forth, that the petitioners, concerned in trade, are greatly prejudiced already, and discouraged to continue the same, for the want of a form of civil government established there, it being at present under that of a military one, whereby the petitioners are not secure in their properties : that his majesty had been pleased to grant his royal letters patent for that purpose, it is yet, notwithstanding, in the hands of military magistrates. That the settling a civil judicature there would contribute very much to the advantage of trade in general, and to the entire satisfaction of all his majesty’s trading subjects, as well as to the great advantage of his majesty’s revenues; the petitioners, therefore, humbly prayed, that his majesty would direct, that a civil judicature might be forthwith appointed, and proper persons be nominated to go from hence, and a competent salary to be allowed them, as to his majesty, in his great wisdom and goodness, should s^em meet. And we humbly certify your lordships, that none of the persons whose names are subscribed to the Digitized by knOOQle Prerogative abroad.'] Eminent Lawyers. 171 said petition, have either by themselves, or their agents, made any application to us in relation thereunto. But we have been several times attended by Mr. William Hayles, who solicits this affair, and once by Peter Godfrey, esq. one of the ' members of parliament for the city of London, upon which attendances we have endeavoured to inform ourselves of the present condition and circumstances of the town and territories of Gibraltar, for which purpose two papers have been laid before us, one of them marked (A) by Mr. Godfrey, and the other marked (B) by Mr. Hayles. The substance of the first (inter alia) js, that there were at Gibraltar, when it was taken, one nunnery, two convents, one of franciscans, and the other of the cathedral church, an hospital of franciscans, the convent of our lady of Europa, four chapels, and one thousand families. • That if a civil government was established there, as in the American colonies, or in some such form as followeth, the place would defray the cliarges of .maintaining itself, and, in a few years, would bring a surplus revenue, viz. A mayor, aidermen, common council, to be annually chosen out of the English residing there; two sheriffs, to be out of the common council; two bailiffs, to be appointed by the sheriffs; a town clerk; a judge of the admiralty ; a chamberlain ; a treasurer for the colony; a muster-master, to be appointed by the mayor and aidermen, to muster Digitized by GooQle m Opinions of [Of the King's the militia and the garrison, whenever the garrison is mustered, and to sign the muster-rolls with the major; the militia to guard the two towers next the land, to prevent the soldiers deserting; a house to be settled for the town-hall, where the records shall •be kept, and the courts of justice act, and the magistrates assemble; a house to be settled for the governor and officers of the garrison; the private centinels to have proper barracks assigned them; no consuls of any nation, or Jews, to reside there. < The substance of the latter paper is, that, at least, two hundred of his majesty’s subjects, inhabiting in Gibraltar, suffer for want of a court of civil judicature being established there, being more ill treated than strangers. That the want of a civil court not only affects his majesty’s subjects* inhabiting there, but all merchants in general trading from Great Britain and Ireland up the Mediterranean, great numbers of whom would build houses, cellars, &c. upon the ruins, where there is space enough, so that there would be a spacious town, and well inhabited by his majesty’s subjects, if the indulgence of a civil ■ court was granted, and his majesty’s gracious per' mission for their building there. ■ That the Spaniards who inhabit there, have a ; Spanish consul, and a Spanish lawyer, who decide - all differences that arise between them. ' That the French who dwell there, are governed after the same manner as the Spaniards, who.pay Digitized by knOOQle Prerogative abroad.] Eminent Lawyers. ' 173 large rents to the governor, monthly, for th^ir houses, which, if applied, would contribute in a great measure towards the subsistence of bis man jesty’s forces in that garrison. . That the Genoese who live there, have likewise a consul and a lawyer, of their own nation, to decide their disputes. That the Dutch who are there, have also a Dutch consul, &c. who determine their differences. And we beg leave to take notice to your lord* ships, that the lords commissioners of trade and plantations, in obedience to an order of the late lords justices in council, referring to them the petition of the said Mr. William Hayles, and others, praying that a court of justice may be erected at Gibraltar, for deciding disputes between merchants and traders, by their report of the 2d of August, 1720, represented to their excellencies, that they •conceived courts at Gibraltar, erected after the manner practised according to the common law in Great Britain, or in imitation thereof, or such as are established in his majesty’s colonies abroad, would be very dilatory and expensive, and consequently not well adapted to the decision of transitory and mercantile disputes in a free port, where there are but few. inhabitants; therefore they proposed to their excellencies, that a more summary judicatory should be established at Gibraltar, and submitted to their excellencies, whether the judge -advocate of the garrison, for the time being, might Digitized by knOOQle 174 Opinions of [ [Of tie Kings not be authorized^ upon any dispute that might arise there, to call to his assistance two merchants^ disinterested persons, by whose advice he-should decide between the two parties contending, from which judgment an appeal might lye to the governor ; and in case of a considerable value, another appeal from the governor’s decision to his majesty in council, as.the last resort.. . ^ . J That their excellencies, the lords justices, having approved the report of the said lords Commissioners. of trade and plantations, by their order in council of the 11th of August, 1720, 5yere pleased to order,. that we should forthwith prepare a draft of such powers aS might be fitting for his jnpjesty to' grant. upon the said occasion; together with • proper regulations to be observed in the execution -of the said new judicature at Gibraltar, and to report the. same to their excellencies in council. In obedience to which order, we prepared a draft .of an instrument to pass the great seal of Great Britain, for erecting a court of judicature iu Gibraltar, which being laid before their excellencies, they were pleased to approve the same,, after some few alterations made therein; after which a commission passed the great seal, directing and empowering the judge advocate, for the time being, together with two merchants within the said town of Gibraltar, to be appointed, from time to time, by the judge advocate, and any two . of them (whereof the judge advocate to be one) to be a Digitized by knOOQle Prerogative abroad,] Eminent Lawyers. ' i75 court, to which court full power and authority is given, to hold plea of, and to hear and determine, in a summary way, all pleas of debt, accounts or other contracts, trespasses, and all manner of other persona] pleas whatsoever, between any person or persons whatsoever, residing or being within the said town or precincts, or territories thereof, and to give judgnient and sentence, according1 to justice and right}'and the method Of proceeding, and manner of execution, is thereby prescribed, as, by the said commission, an entry whereof is made in the council books, to which we beg leave to refer, will appear. ■ This commission passed in that manner, and upon the consideration above-mentioned, is still continued in force, and no objection has been made before us, as to the substance of it, but only as to the persons appointed to be judges, the principal whereof being the judge advocate, and he having authority, from time to time, to name the two merchants that are to act with him, it is objected that this is too great a power to be entrusted with a single person, especially with one who is an officer Of the garrison, and subject to the command of the military governor, and upon that account the more improper; and, therefore, it has been proposed that persons should be expressly appointed ’by his majesty’s commission to be judges, who ■understand the law, and are qualified for the regu- Die . by )OQle 176 Opinions of [Of tit Kings lar execution of justice, with competent salaries for, their trouble, which may be defrayed by the revenues of the place* . And we further certify your lordships, that the said commission was passed at the instance of the said Mr. Hayles, upon a particular occasion, which was represented, in a very pressing mapper, to require great dispatch, in order to the recovering of certain debts then in danger of being lost j and fop that reason the judge advocate having been pfp-r posed by the lords commissioners for trade apd plantations, and being found to bp the most proper person then ready upon the place, the commission passed in that manner, b'ut we are humbly of opinion, that in case a standing judicature he erected to have continuance in the said town and territory, it may be proper that persons should be expressly named judges in the.very commission, who may be more particularly qualified for the administration of civil justice. We beg leave to observe to your lordships, that though the petition concludes with a prayer only for the establishing a court of civil judicature, pnd appointing ofjudges, yet it sets forth that the petitionr ers are greatly prejudiced in their trade for wantqf a form of civil government, and, upon this head; we cannot but take notice to your lordships, that it has been represented to us that the place is at present wholly destitute of any civil government, and Digitized by knOOQle Prerogative abroadi\ Eminent Lawyers. 177 that' the property of the lands and houses has never been settled since the conquest thereof, in. the time of the late queen, but remains precarious. ■ Upon this information we have made the besjt inquiry we could, whether, by the articles of surrender, or any treaties, declarations, or other public acts, ratified by the crown of Great Britain, any legal provision has been made, or rules given for that purpose, and have been able to find none^ and, therefore, we are humbly of opinion, that as a fundamental necessary to any form of civil government, without which courts of judicature will be in a manner useless, and for the quieting of the inhabitants in their possessions, some settlement ought to be made of the property, in the houses, and lands, within this town, and territories. It has also been represented to us, that no laws have been given to this place for fixing the nature of crimes, and the punishments to be inflicted on offenders, but that the same are, at present, punished by martial law, or, at least, in a way of military discipline. ' This we apprehend to be a defect, which requires a remedy, and that laws should be given, for this purpose, and powers to civil magistrates to put them in execution, in some fixed court ofjustice. In order to enable ourselves the better to lay before your lordships heads of a scheme, pursuant to your lordships’ order, we thought it not improper to inform ourselves of what had been done upon Digitized by GOOQle 178 Opinions of [Of tie King's the first settlement of Tangier, in the time of king Charles the Second, and of his majesty’s colonies and plantations in the West Indies; and, for that purpose, have perused a copy of letters patent passed for Tangier, and also have caused to be laid before us copies of the commissions which were granted for the islands of Jamaica, and the Caribbee Islands, upon settlement thereof, which are hereunto annexed. As to Tangier, the method then taken was thus, viz. by letters patent, dated the 20th April, 1668, the town was declared to be a free city, all the inhabitants (being Christians) were incorporated by the name of mayor, aidermen, and commonalty, with a recorder, and twelve common couneilmen; out of the mayor, recorder, and aidermen, was constituted a court of record, for determining civil causes, and a court of oyer and terminer for criminal matters, with a general jurisdiction (except as to persons in actual pay in the garrison). Besides winch, a particular court is erected for mercantile causes; and all proceedings were directed to be, according to the laws of England, as near as the condition of the place and safety of the inhabitants would permit. ; The first commission for the government of Jamaica, issued since the restriction, bears date the Sth February, 18th Car. II. By that the governor is directed to take to him a council of twelve of the inhabitants, and (amongst other things) Digitized by knOOQle Prerogative abroad.] Eminent Lawyers, 179 power given to him, by the advice of five or wore of such council, to erect such, and so many, civil judicatures, with authority to administer oaths, as should be held necessary. The commission for the Caribbee Islands, which has been laid before us, bears date the 3d of Ja<-nuary, 18th Car. II. By that commission, the governor is to appoint a council of twelve in each island, and a general power is given him, with the advice of such councils respectively, to appoint all forms and ways of government, magistracy, and execution of justice, and to erect courts of judicature for all causes, criminal and civil, and to institute forms of proceedings; to appoint judges and' other ofiicers, and to ascertain their respective authorities and fees: provided that all the constitutions and establishments, so made, should be transmitted, to be allowed, or disallowed, by his majesty in council. A general assembly is appointed, to consist of members to be chosen by each township, who are to make laws with the assent of the governor. But power is given to the governor, with the advice of the respective councils, to make laws on emergent occasions, without any assembly, provided they should be as near the laws of England as the nature and constitution of the country would admit, and did not charge or take away the right of any persons in their freehold, goods, and chattels. Power is also given to the governor, N 2 Digitized by Google 180 Opinions of [Of the King's togrint parcels of land, unplanted, to planters, under certain terms and reservations, and a register to bC kept for all conveyances ; besides which, the commission descends to other particulars, which we'conceive not to be material to be stated to your lordships. ■ -Sy these instances it appears, that sometimes iTie crtiwii has1 thought fit, by particular express ^rbvisibrfs urider the great seal, to create and form the S^Vertil parts of the constitution of a new go-v^rntiferft, and at other fimes has only granted glnbrHl 'powers'* fo the giverhof to- frame such a ^dnititiitW^s^ie^sbould;^ fit, with the advice Wa ccnlhdil, Consisting of a certain number of the inhabitants,'wttb might be supposed to be most ca-paWe'e? judging whatthe Condition of the country required,‘and 'this subject to the approbation or "disallowance of the crown; but which of these two methods is fittest ‘to be followed in this case, de-pends upon-the particular circumstances of the place, of which, we appreltend, we have not obtained sufficient information to enable us to make any certain judgment; but if there be about one thousand families in the town, as is represented in Mr. Godfrey’s paper, and amongst those about two hundred of his majesty’s subjects, as in Mr. Hayles’s paper (which he explains to us to mean British and Irish), we beg leave to submit it to your lordships, whether, upon that consideration. Digitized by CrOOQle Prerogative abroad.] Eminent Lawyers* 181 a constitution framed strictly according to the forms of the common law of England, may be convenient or practicable. As to the settlement of property, we apprehend that may be done by virtue of powers to be given by his majesty to the governor, for making grants of such houses and lands, whereof the property clearly remains in the crown (under fit regulations), and also for confirming the titles of others, by some general declaration, in such manner as shall be thought proper. , We beg leave to lay these matters before your lordships for your consideration, because we find the recitals of the petition lead thereto, and some of them may be necessary to receive a determination before any court of judicature whatsoever can have its due effect; but the prayer of the said, petition, and your lordships’ commands to us, going no further than to prepare a draft, or proper heads, for establishing a court of civil judicature, and the objection made before us to the court already established being only with regard to the persons thereby appointed judges, we are humbly of opinion, that if proper persons are expressly nominated judges by his majesty, in the commission itself (as is above mentioned), the present form may, in the other parts thereof, not be improper. December 14, 1722. Rob. Raymond. Phil. Yobke. Digitized by knOOQle 181 Opinions of ' [Of the King'& (2.) The opinion of the attorney-general Northey, that the queen might establish a court of equity in Massachusets Bay. Extract from the charter of Massachusets Bay, and Mr. Attorney-general’s report upon a clause in the charter of the Massachusets Bay, relating to the establishing of courts. ** And we do of our further grace, certain knowledge, andjmere motion, grant, establish, and ordain, for us, our heirs, and successors, that the great and general court or assembly of our said province or territory for the time being, convened as aforesaid, shall for ever have full power and authority to erect and constitute judicatories, and courts of record, or other courts, to be held in the name of us, our heirs, and successors, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things whatsoever, arising or happening within our said province or ’territory, or between persons inhabiting or residing there, whether the same be criminal or civil, and whether the said. crimes be capital or not capital, and whether the said pleas be real, personal, or mixed, and dor awarding and making out of execution thereupon: to which courts and judicatories, we do hereby, for us, oiir heirs, and successors, give and grant full power and authority, from time to time, to administer oaths for the better discovery of truth, in any matter ip controversy, or depending before them.” Digitized by LjOOQle Prerogative abroad.] Eminent Lawyers, 183 On consideration of this clause, if there be no other clauses that exclude the power of the crown,-I am of opinion her mgyesty may, by her prerogative, erect a court of equity in the said province,' as by her royal authority they are erected in other her majesty’s plantations, and it seems to me that the general assembly there cannot, by virtue of this clause, erect a court of equity. ■April 21 j 1703-4. Edw. Northey. (3.) Mr. West’s opinion on the king’s right to establish a new office of law at Barbadoes. To the right honorable the lords commissioners of trade and plantations. . ■ My lords. 1 In obedience to your lordships’ commands, li • have perused, and considered, the following acts of assembly, made and passed in the island of Barbadoes ; and, as to the first act, intitled, “ an act to1 empower the governor or commander-ih-chief for the time being, and council,-to commute the value of powder, arms, and ammunition, or other storesy that are or shall be found wanting in the accounts of store-keepers of the magazines in this island, and. to reduce the same iuto money,’Tam of opinion,that it is not proper to be passed into law. Upon occasion of this act, I have been attended by Mr. Tryon, who appeared as a solicitor against its being confirmed, and also by the agents for the island in defence of it. And, as to the subject matter of the Digitized by knOOQle V4r Opinions of ■ [Of the King's act, viz. the commuting the value of powder, arms, and ammunition, for ready money, I submit that to your lordships’ judgment, upon consideration of the annexed reasons, both for and against it, that were left with me, by the above-mentioned solicitor and agents. . • •■ ■ And as to the other part of the act, wbich relates to the proceedings against Mr. Teers, late one of the store-keepers for the island of Barbadoes, as there is a petition, now depending in the privy council, on the behalf of the said Mr. Peers, or his representative, against the said bill, upon which their lordships have not, as yet, come to any determination, I believe your lordships will not expect any opinion from me on that part of the bill. But then as to another part of the bill, which confirms the- process executed by the marshal of the committee of Recounts, I am of opinion, that it is contrary to the king’? prerogative, inasmuch as the committee do thereby pretend to establish a new officer of justice,, and such an pfficer as no committee of our house of commons at home, ever yet pretended to appoint. „ .The second act is intitled, “ an: act for the better ordering and regulating the proceedings of his majesty’s court of common pleas, within this island.” Upon occasion of which act, I have likewise been attended by the solicitors against its being passed, and I beg leave to annex to my report, a copy of such re»- Digitized by vjOOQlC Prerogative abroad.} Eminent Lawyers. 185 sons against, and objections to, the act, as they thought fit to leave with me, upon this occasion; and, as to the subject matter of the act, I am humbly of opinion, that it is not proper to be passed, though, at the same time, the intention of this law seems to me, not only to be very reasonable, but very fit to be passed some time or other, when drawn into proper form ; for, if a special verdict be not found in any case, where either party thinks himself aggrieved by the judgment, it is exceeding difficult, if not impossible, to have a remedy, by appeal, to the council at home, since, without a special verdict, the whole of the case can never fully appear. If, therefore; they had confined the obligation they put their judges under, of directing a special verdict when desired, to such causes only, where the value of the thing in question was equal tq what, by his majesty’s instructions, they are at liberty to. appeal home for, I should have thought the act well calculated to render the remedy the subject there has against any erroneous judgment, by appealing to the privy council, more easy and practicable, and also to make the dependence of those people still close to our government at home. But the obliging all judges to direct a special verdict, without any reason assigned, upon the bare request of the party, and that in cases of never so small a value, is certainly putting it in the power of the debtor, most unreasonably to delay his ere- Digitized by GOOQle 186 Opinions of [Of the King's ditor, in the recovery of just debts. But the penalty inflicted upon judges, who deny, or neglect to direct, a special verdict, when desired, by making them, besides an incapacity, liable to the damages sustained by the party, and those to be recovered before any justice of peace, as in case of servants wages, is so absurd, that I believe your lordships will not think it proper to be passed into law. As to the several acts following, viz. “ a supplemental act to the act to enable and empower the treasurer, to pay unto Dr. Home, the arrears due to him, on account of the French prisoners, during the late war;” “ an act for enlarging the time for sale of effects attached for parish dues in arrear;” “ an act to impower the treasurer to defray the expences of the late grand sessions, held for the body of this island, the 9th, 10th, 11th, and 12th', of December, 1718;” “ an act for abrogating the oath, appointed by an act of this island, to be taken by attornies employed to draw up special verdicts, and appointing another oath instead thereof;” * an act for the encouragement of William Masset in his new projection of making worms, and altering stillheads, for the better improvement of distillation :” I have no objection to their being passed into law. . June 18, 1720. Rich. West. (4.) The opinion of the attorney, and solieitor-ge- ■ ed by knOOQle Prerogative abroad.] Eminent Lawyers. 187 neral, Ryder, and Murray, on the kind's right of establishing a government in Georgia, upon the surrender of the trustees. To the right hon. the lords commissioners for trade and plantations. * May it please your lordships. ' In pursuance of your lordships* desire, signified to us in Mr. Hill’s letter of the 17th inst., setting forth, that the lords of the committee of council for plantation affairs, had referred to your lordships, a memorial of the trustees, for establishing the colony of Georgia, with directions to propose a draft of what your lordships should think most advisable to be done, in order to obviate the difficulties therein, suggested, a copy of which memorial your lordships had directed to be inclosed, for our opinion, in what manner the present magistrates, and other officers, appointed by the trustees, for the administration of justice and execution of government, can, upon the surrrender of the charter, be impowered to act in their respective employments, till a new administration of government shall be settled: we have taken the said memorial into consideration, and are of opinion, that if the surrender of the charter, by the trustees, cannot be postponed, and the present government there kept up, till a new method of administering the new government can be settled, (which seems most advisable) the properway for authorising the present magistrates, and officers, to continue in the exercise of their respective offices, in the mean Digitized by GooQle 188 Opinions of. \Ofthe Kb-^t time, will be, for his majesty to issue a proclamation for that purpose, under the great seal of Great Britain, to be published in Georgia. . February 25th, 1152. t . D. Ryder. . W. Murray. (5.) Mr, Fane's opinion, on the king's power of Calling an assembly, in New York. To the right hop. .the lords commissioners for trade and plantations. My lords. In obedience to your lordships’ commands, signified to me by Mr. Hill, 1 have considered an act, passed in New York, intitled, “ an act for the frequent elections of representatives, to serve in general assembly, and for the frequent calling, and meeting, of the general assembly, so elected;” which enacts, that the general assembly of this colony shall be held once a year, at least, at New York, unless the governor, with the advice of a majority of the counsel, (which is to consist of five,) shall, under the seal of the colony, appoint another place. It further enacts, that in six months after the dissolution, or determination, of every assembly, new writs are tq be issued, for electing a new assembly, which is to be held once a year, and every future assenibly is to have continuance for three years only, to .be accounted from the day of their meeting, and there js a clause to determine the present assembly on the 15th June 1739, unless the governor, for the time being, shall dissolve Digitized by UooQle Prerogative abroad."] Eminent Lawyers. 189 it sooner. I beg leave to observe to your lordships, that I think this act is a very high infringement upon the prerogative of the crown; for it takes away that undoubted right, which the crown has always exercised, of calling, and continuing, the assembly of the colony, at such times, and as long, as it was thought necessary for the public service,' and therefore, when such a material innovation is attempted, there ought to be some very strong and cogent reasons, to induce your lordships to consent to it. For my part, I have heard none, and therefore am humbly of opinion, that it ought to be repealed. July 20th, 1738. Fran. Fant. (6.) The opinion of chief-justice Morris, in New Jersey, on the king’s power of' mercy. ' The act of general pardon, now under our consideration, I think consists of two parts : the one is, to pardon all those persons, who have been con-terned in, or are guilty of, any of the late riots, or insurrections, in this province; the other is, to stop and suspend ail process, and proceeding, against those persons, who are already indicted for high treason, or such as may hereafter be accused of that crime, until, and to the intent, bis majesty’s pleasure may be known. ’ I look upon this to be a matter of very great importance, perhaps the greatest that ever yet was under the consideration of the council of New Jersey, and therefore wish that things had been so Digitized by knOOQle 190 Opinions of {Of the Kings managed, as to have brought this affair before us earlier in the sessions, that we might have had . the greater time to weigh and cpnsider, what wa^ proper to be done; however, I shall deliver my opinion, and advice, upon the matter, in as clear a manner, as the shortness of the'time, and my abilities, will permit. I am clearly of opinion, that by his majesty’s commission to his excellency, under the great seal of Great Britain, his excellency has full power,.and authority, to extend his majesty’s mercy, by a general pardon, to all those that have been concerned in the late riots and insurrections, within this colony: provided the crimes, of which they stand accused, do not amount to high treason, or murder, these being the only crimes excepted, in that clause of the royal commission, which gives power to extend his majesty’s mercy. But I do not think it, by any means, prudent, or advisable, in his excellency, to use the powers so given, in the manner proposed by the general pardon, before us, till the legislature, now sitting, have made provision effectually to strengthen the hands of his majesty’s government, so as to enable them to protect the persons, and estates, of the people of the province, and to carry into execution the laws of the land. When that is done, in a manner sar tisfactory to the government, then, and not before, I humbly conceive, it will be prudent and.advisable in his excellency, to grant and extend his ma- Digitiz . by knOOQle Prerogative airoad.] Eminent Lawyers. 191 jesty’s gracious mercy, to the persons concerned in the said late riots, which will then, in my opinion* tend very much to restoring the peace of the province, as most of the persons concerned are an ignorant people, encouraged, and set on, by some artful and designing men. ■ As to the second part of the act of general pardon, I must declare it as my judgment and opinion* that neither by his majesty’s commission, nor by the article of the royal instructions, now communicated, has his excellency any power, or authority, to suspend the process, or stop the proceedings, in cases of high treason. The powers of pardoning, given by the commission, are full, as to all crimes, but treason and murder,a which being expressly reserved and excepted, no construction, in my opinion, can possibly extend the words, so as to give power to suspend, or stop, the proceedings in those cases, which will, in effect, be pardoning, as the parties are (and, it is intended, shall remain) at full liberty, and may remove themselves, and their effects, to another part of the world, long before his majesty’s pleasure can be known. As to the instruction now communicated, it is certainly a very good one, and, among many others, shews his majesty’s great care, and paternal affection, for these, his remote dominions; but I think there is nothing contained in it, that can be'con-strued, to give a power to do what is now proposed. ■ Digitized by knOOQle J 9$ Opinions of. . {Of the Kings ■ The material words are, “ and if any thing shall happen, that may be of advantage and security to our said province, which is not herein, or by our commission to you, provided for, we do hereby allow unto you, with the advice and consent of our council, to take order, for the present, therein, &c.” This instruction seems to mejustly calculated to empower the governor to act for the advantage, and security, qf the province, in extraordinary cases, wherein the commission and instruction are silent; but in my humble opinion, was never intended, nor ,can it be construed, to extend to things expressly provided for by the commission, which the powers of pardoning and reprieving are, so far as his majesty intended they should be used: and as the powers of pardoning treason is there expressly reserved, and excepted, I cannot think the general words, in the instruction, were intended to give a power contradictory to the commission. And I conceive, that as the king’s instructions receive their greatest force from the commission under the great seal, so the granting the suspension, proposed under the powers given by that instruction, will be doing qn act, by virtue of the royal commission, which that very commission prohibits and excepts,, in express words. Having declared my sentiments, that his excellency has no power by his commission, or instructions, to grant the suspension proposed, it will be needless to enter far into the consideration of the Digitized by knOOQle Prerogative airtail.] Eminent Lawyers. 193 legality, of tying up the hands of the courts of law, in Such cases, which seems to me to;be stopping the ordinary course of the laws, and exercising little less than a dispensing power, not warranted by the constitution. < . How far it will be prudent, and advisable, in his excellency to grant the suspension proposed, if .he had power, is next to be considered, and greatly depends upon the state and circumstances of the province, which is very well known to every one, here present, and therefore need not be mentioned. But certain it is, that things would never have gone the lengths they had done, if the legislature had interposed, when this rebellion was young, and before it had come to its maturity, nor ■need it now continue longer, if they will exert .themselves, in support of his majesty’s authority, and the laws of the land. . . . In my humble opinion, the province is not in such circumstances, as to make it prudent, or ad* visable, in, the government, to stretch their power in favour of a few people, who have thrown off their allegiance; there is power and strength enpugh in the province, to put the laws in execution; his excellency, with the council, and, a^em-bly, can, if they will, presently put a stop to those disorders, and were they once inclined, these daring people would presently sneak into their hidingplaces, and not venture to shew themselves in op* position to the government. But while we=want ' o Digitized by Google 194 Opinions of [Howfir Colonists inclination, and while these people know what we do, all the mild measures proposed will be ineffectual, and only tend to bring the government into greater contempt. Had these daring disturbers not been countenanced by some men of note, had they not depended upon the support and protection of people much above themselves, they never would have ventured, thus, to have flown in the face of his majesty’s government, and to have thrown off their allegiance. Had they laboured under any injustice, or oppression, they have had full liberty, and have laid their complaints before the assembly, too many of whom want not inclinations in their favour; and as they have been fully heard, and no one instance of oppression, or injustice, made out, even to the satisfaction of the assembly, it must be presumed their complaints are only clamour, designed to draw in weak and unwary people, to join them in their unlawful practices, R. H< Morris. III. How far theking*s subjects, who emigrate, cany with them the law of England : First, The common law j Second, The statute law. tint. As to the common law. (1.) Mr. West’s opinion on this snhject, in 1720. The common law of England, is the common Digitized by knOOQle carry Eng. Laws.] Eminent Lawyers. 19§ law of the plantations, and all statutes in affirmance of the common law, passed in England, ant tecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary, though no statutes, made since those settlements, are there in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear. (2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. • In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary ; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form, colonies, and receive your majesty’s protection, by virtue of your royal charters. C. PaATT. C. Yob ke. (3.) Mr. Fane’s opinion, how far subjects can be detained in custody, on a charge of piracy. ■ o 2 ', Digitized by GooQle 196 ■ Opinions of [How Jar Colonists - To the right hon. the lords commissioners of trade and plantations. My lords. In obedience to your lordships’ commands, signified to me by Mr. Popple’s letter of the 3d of May last, whereby your lordships are pleased to desire my opinion, in point of law, how far Mr. Worsley, governor of Barbadoes, can be justified in detaining two persons in custody, upon that island, upon suspicion of piracy, supposed to be committed on the Portuguese factory, at Cape Lopez: I have considered of the matters lo me referred, and am humbly of opinion, that Mr. Worsley cannot justify the detaining the persons any longer in custody, upon suspicion, without bringing them to a trial, and which he says, in his letter to your lordships, be declines doing, because he is apprehensive, that for want of evidence, they , will be acquitted, therefore I think they ought to be released ; but it may be proper for Mr. Worsley,if the suspicions are very strong against them, not to discharge them, till such time as they have: given security for their appearance, to answer any mattery , that may hereafter, in a reasonable time,be charged upon them. July 14,1726. Fran. Fane. Second. As to the extension of the statute law. (I.) The attorney-general Yorke’s opinion, on this subject, in 1729. Digitized by knOOQle carry Eng. Laws.] Eminent Lawyers. 197 Quare.—Whether such general statutes of Eng- ■ land, as have been made, since the date of the char-" ter of Maryland, and wherein no mention is made of the plantations, and not restrained by words of local, limitation, are, or are not, in force without being, introduced there by a particular act of their own?, > I am of opinion, that such general statutes as have beep made, sipcethe settlement of Maryland,-and are not,' by, express words, located, either to. the plantations in general, or to the province in; particular, are not in force, there, unless they have, been introduced, and declared to be, laws, by so,me acts-of assembly of the province, or'have been, received there by long uninterrupted usage, or practice, which may import a tacit consent of the lord proprietor, and the people of the colony, that they should have the force of a law there. , March 9,1729* P. Yorke. By stat. 25 Geo. IL ch. 6. s. 10. it appears, that the legislature considered usage, as sufficient to have.extended an act of parliament to the colonies^ (2.) The opinion of the attorney anti solicitor^ Henley, and Yorke, that the subjects 'emigrating^ do carry with them the statute law, in \1 51. My lords. In obedience to your lordships* commands, sig-, nified to u sby Mr. Pownal, by letter, dated April 1st, 1757, accompanied with an inclosed letter and papers, which he had received from Jonathan Bel- Digitized by Google 198 Opinions of [HowJar Colonists cher, esq., chief justice of his majesty’s colony of Nova Scotia, relating to the case of two persons convicted, in the courts there, of counterfeiting and uttering Spanish dollars add pistereens, and requiring our opinion, in point of law, thereon: we have taken the said letter and papers into our consideration, and find that the question, upoh Which the case of those two persons Convicted of high treason depends, is this, Whether the act of parliament, 1st Mar. ch. 6. intitled an act, that the counterfeiting of strange Coins (being current within this realm), the queen’s sign manual, or privy seal, to be adjudged treason, extends to Nova Scotia, and is in force there, with respect to the counterfeiting Spanish dollars and pistereens, in the said province. And we are of opinion, 1st. that it doth not; for that the act is expressly restrained to the counterfeiting of foreign coin, current within this realm, of Which Nova Scotia is no part. Secondly, we are of opinion, that the proposition adopted by the judges there, that the inhabitants of the colonies carry with them the statute laws of this realm, is not true, as a general propo* sition, but depends upon circumstances, the effect of their charter, usage, and acts of their legislature; and it Would be both inconvenient, and dangerous, to take it in so large an extent. And thirdly, we are of opinion, that the offence eta only be considered as a high misdemeanor, un- Digitized by knOOQle carry Eng. Lam.'} Eminent Lawyers. 199 less there are any provisions in any charter, granted to that province, which make it a greater offence, to which we are entirely strangers. May 18,1757. R. Henley. • C. Yorke. (3.) The opinion of the adoocate, the attorney, and solicitor. Hay, Yorke, and Norton, on the same sub* ject, in 1762. - 42w far Colonisle no mention of the manner of trial, if such offences Should be committed, in any of his majesty’s plantations, or colonies, in America. June 25,17^7. W. de Grey. £. Willes* (5.) The opinion of the attorney and solicitor-general, Raymond, and Yorke, Juno far the statute of monopolies extends to the colonies. To the right honorable the lords commissioners for trade and plantations. In obedience to your lordships’ commands, signified to us by Mr. Popple, by his letter, dated the 24th of June last, whereby he acquaints us, that his majesty having been pleased to refer to your lordships the petition of Mr. Shard, and others, for a patent, for the sole curing of sturgeon in America, and importing the same into this kingdom; and your lordships being desirous to have the same effectually carried on, without being made a stockjobbing business, were pleased to require our opinion, inwhatmannera patent may be granted them. To answer what your lordships propose, in that point, we have considered of the matter thereby referred to us, and are of opinion, that if such a patent, as is prayed by the petitioner, might be granted by law, the making it a stock-jobbing business may be prevented, by inserting a clause therein for that purpose; but, upon the case, as stated to us, we apprehend, that the art pretended to, by the petitioner, does not appear to be a new invention, of Digitized by LjOOQle tarry Eng. Lams.} Eminent Lawyers. ■ 203 which the sole use is grantable; besides that, we are very doubtful upon consideration of the statute of the 21st of Jac. I. c. 3. whether the prerogative of the crown, for making grants of this nature, exclusive of other persons, extends to the plantations. July 18, 1720. Robt. Raymond. Phil. Yohke. (6.) The opinion of the attorney-general Yorke, in 1727, how far statutes extend,to the Isle of Man. 1 am of opinion, that no officer of the customs can, by virtue of any deputation from the commissioners of the customs, in Great Britain, make a seizure in the Isle of Man; because, as I take it, their commission doth not extend to that island; but I conceive that the clause in the act 7 Geo. I. upon which this question arises, gives power to any person whatsoever to seize goods imported into the Isle of Man, contrary to the provision of that act; and that those general words are not restrained, as ' they are in England, by the operation of the act of frauds, 14 Car. II. c. 11. s. 15. which directs seizures to be made by the officers of the customs only, for that clause extends only to England, Wales, and Berwick-upon-Tweed; th^pefore I think officers, so deputed, may make seizures in the Isle of Man for importations, contrary to the act 7® Georgii, and prosecute the same to condemnation, in the proper court there, but this must be done, not by virtue of Digitized by knOOQle 204 Opinions of [Howfar Colonists their deputations, but as common persons, by force of the act of parliament. August 23, 1727. P. Yorke. ' (7.) The opinion of the attorney and solicitorgeneral, Yorke, and IVearg, on the' extension ■ of the laws of England to the colonies, and on other analogous topics of law *. To the right honorable the lords commissioners of trade and plantations. • May it please your lordships. - In obedience to your lordships’ commands, signified to us by Mr. Popple, by his letter dated the 4th of February last, transmitting to tis the annexed copy of an order of their excellencies the late lords justices made in council, and requiring our opinion upon the matters therein referred to your lordships, we have considered the said order, which contains in substance, tliat your lordships should consider what law’s, now in force in the island of Jamaica, will expire the 1st of October, 1724, and what laws will remain in force after that time ; and that your lordships should also consider, upon what foot the government of that island will stand after the said 1st of October, 1724, and under, what circumstances the inhabitants thereof will re- * By a clause in the Mutiny Act, 6 Geo. III. crimes committed in the upper country of Canada were made triable, in the Canadian courts of justice; and, in 1773, one Dud, who had murdered his master, at Detroit, was thus tried, found guilty, and executed Digitized by knOOQle carry Eng. Laws."] Eminent Lawyers. 205 main, in relation to their dependence upon the authority of the crown; and that your lordships would take the opinion of his majesty’s attorney and solicitor-general thereupon, and report a full state thereof to their excellencies in council. And we humbly certify your lordships, that the several points mentioned in the said order, depending upon the constitution of the island of Jamaica, and the several alterations it has undergone, since the conquest thereof, from the crown of Spain, in the year 1655, we have found it necessary to inquire into a great variety of .facts, which could only appear by the books and memorials preserved in your lordships’ office; and in order to our information therein, your lordships’ secretary did, at our request, lay before us several original books, and copies and extracts out of other books and papers, by the assistance whereof we have endeavoured to form some judgment upon the subject matter of the said reference; but by reason of the many defects, which were in the first settlement of this colony, and the contentions, which have been kept on foot ever since, between the respective governors and assemblies of the people, we find many things of nojlittje consequence left in great uncertainty, at this day ; and in several instances it is very difficult to learn what was the real transaction, by reason of the imperfect accounts, which have been sometimes transmitted hither. The points specified in the said order of the late Digitized by VzK . He 206 Opinions of' [Hawfar Colonist lord justices, whereupon your lordships have been pleased to require our opinion, are three, viz. What laws, now in force in Jamaica, will expire on the 1st day of October, 1724? What laws will remain in force after that time ? Upon what foot the government of that island will continue after that time, particularly in relation to its dependence upon the authority of the crown of Great Britain ? As to the laws of the island, they appear to have been made in different manners, and under different powers, at several periods of time; and because in considering them, some facts will occur, which may be found to be material, with relation to the third point referred to us, we beg leave to state the case, as to this head, more fully to your lordships. The first’ commission of a governor of this island, which has been laid before us, was granted to colonel Edward D*Oiley, bearing date the 8th day of February, 1660, whereby he was empowered to do and execute all things appertaining to the office of governor, which might tend to the defence and good government of the island, according to such powers as were given him by his commission and instructions, and according to such good and reasonable customs and constitutions as were exercised and settled in his majesty’s other plantations, or such as should, upon mature advice and consideration, be held necessary and proper, for the Digitized by UooQle carry Eng. Laws.] Eminent Lawyers. 207 good government and security of the island, provided they were not repugnant to the laws of England ; but no reservation is made, or direction given, for the transmitting any acts, or orders, to be made by him in the island, to be confirmed by the king. For the better administration of justice, and management of affairs, he was directed to take to him a council of twelve persons, to consist of the secretary of the island, and eleven persons to be elected indifferently by as many of the officers of the army, planters, and inhabitants, as by his best and most fequal contrivance might be admitted thereunto. With the advice of this council, or any five of them, the governor was empowered to erect and constitute civil judicatures, with power to administer an oath, and to do and execute all and every such further act and acts as might conduce to the security of the island, and the people thereof, and the honour of the crown. By virtue of this commission and instructions, several courts of justice were erected, and many orders made by the governor and council, the style whereof is, be it enacted and ordained by the governor and council, concluding, given under my hand on such a day, and signed by the governor; and several of them are mentioned to have been proclaimed in the island. Amongst these is an act, or order, for laying an impost' upon strong liquors imported, viz. upon Digitized by GOOQle 3Q8 . Opinions of [Howfar Colonists every ton of Spanish or French wine, four pounds sterling; .every gallon of brandy, or spirits, sixpence ; and every top of beer, twenty shillings, and .after that rate for a smaller or greater quantity. Remedies are thereby provided for the levying and recovering this duty, and penalties inflicted. on persons committing frauds therein. - There is also another act, or order, for laying one shilling per ton upon all ships trading to this island. . ’ Many other ordinances appear to have been made in the same manner, for the better government of the island, for regulating trade, and redressing public mischiefs; and some particular acts in’ the Barbadoes’ book (as it. is there expressed) are ordered to be in force in Jamaica . In many of these ordinances, penalties and forfeitures to the king are inflicted; justices of the peace are spoken of as magistrates then in being, though we cannot find any general constitution of justices of the peace, only an order of the governor and council, appointing all the members, of the council to be justices of the peace throughout the island, and some others appointing particular persons justices of the peace. . ' On the 2d day of July, 1661, the lord Windsor was appointed governor, in the room of colonel D’Oiley. By his commission and instructions, power was given him to appoint and constitute a council,, to consist of twelve persons, by the advice Digitized by knOOQle ttrry Eng. Laws.1} Eminent Lawyers. 209 of whom, or any five of them, he was authorized to erect civil judicatures, and to proceed in all other acts of council and government. And in his instructions, is this clause, you shall have power, with the advice of the council, to call assemblies together, according to the custom of our plantations, to make laws, and, upon eminent necessities, to levy monies, as shall be most con-ducjble to the honour and advantage of our crown, and the good and welfare of our subjects: provided that they be not repugnant to any of our laws of England, and that such laws shall be in force for two years, and no longer, unless they shall be approved and confirmed by us. This is the first mention that is made of an assembly ; but, notwithstanding that, it appears that lord Windsor, during his stay in Jamaica, which was but short, made three ordinances, with the advice of the council, as much in the form of laws as those made by colonel D’Oiley. The like was done by sir Charles Littleton, who was appointed deputy-governor under his lordship, and more particularly one ordinance, which is intitled, an additional or supplemental act, to an act formerly made by the governor and council, for the raising a public revenue out of all strong liquors imported to this island. By this ordinance, not only new methods of levying and collecting the former duties are provided, but also the like duty of four pounds sterling, per ton, is imposed' Digitized by knOOQle 210 Opinions of [Howfar Colonists■ upon all Madeira and Fyall wines, as was, by the-former act, upon Spanish and French wines. But, on the 23d day of October, 1663, sir Charles Littleton, with the advice of the council, mode an order for calling an assembly, to consist of thirty persons, being freeholders, to be fairly and indifferently chosen in the several quarters of the island. In the same book, in which these acts or orders are contained, and immediately following them, is a transcript of a body of acts of assembly, without any title, save the word Jamaica, and . the letters' S. C. L. at the top of the first page, which we apprehend to stand for sir Charles Littleton : these, we conceive, to be the acts of this first assembly. Amongst these acts there is a very remarkable one, intitled, “ an act for confirming divers acts of the governor and council of this island, and repealing all other acts and ordinances,” in which some particular acts, or orders, are expressly confirmed and ordained to be of as full force as if they had been enacted by the governor and council, with the consent of the assembly; all other acts and ordinances made by governors and councils only are declared to be utterly void. But a clause is inserted for indemnifying all officers and other persons who acted under them, for acts done before that time. ' We have been the .more particular in stating, these facts, because from them it appear^ that it was insisted upon by the people of the island, at Digitized by knOOQle carry Eng. Laws."} Eminent Lawyers. 211 that time, that the acts, or ordinances, of the nature of the laws, which had been formerly made by the governors and council only, were not binding laws, but void in themselves, for want of the consent of the representatives of the people, met in an assembly. : Agreeably to this opinion, a new act was made for establishing courts of judicature, and also a new revenue act, whereby duties were laid upon strong liquors imported, varying only in one or two particulars from the former duties. , But though these acts passed in the island, they do not appear to have been approved by king Charles the Second, and, consequently, could continue in force only for two years. . The 15th day of February, 1663, sir Thomas Modyford was appointed governor; by his commission express power was given to him to choose a council of twelve persons, and with the advice of them, or any five, or more, of them, to make reasonable laws, constitutions, and forms of government, magistracy, and execution of justice, and to erect courts of judicature: provided the laws to be made were as near as might be to the laws of England, and did not extend to take away any right of any person in their freehold goods, or chattels, or to the loss of member, and so as they were transmitted to bis majesty to be approved. Power was also given to the governor, with the advice of the council, to establish and frame in such P 2 ■ Digitized by knOOQle 212 Opinions Of [H or what wi|l be proper for them to do in, this case: divers of them l^eing apprehensive, that if they lay the tax,, they do .thereby allow the act to .be in,force, and they will be afterwards bound ,by it, although they are of opipion, the said law. is in fact determined ? , ,It has .been generally held, that, at common, law, all patents determined by the death of the king, by whom they were granted; and it is observable, (that,_ on the death .of king James the First, the judges thought it safest not to act till their patents were renewed, although there had heep a proclamation, for continuing them in their, several offices -as before; the reason of which opinion so/ar prevailed, that, even on the abdication of king James the Second, many lawyers held, that the judges’ commissions determined, from the time of the king’s withdrawing; However,., by the sta/ 7ajui Digitized by knOOQle Constitutions:} Eminent Lawyers. 227 8 W. 3, which was explained by a subsequent stat, of 1 queen Anne, ch. 8, all commissions or patents are made to continue for six months, after the de> mise of the king, unless superseded, in the mean time, by the successor. Now, the governor, holding, his place by virtue of a commission from the late king, and that not having been renewed, by his present majesty, till after the six months were elapsed, it would seem just enough (taking it in this light) to infer, that his excellency ceased to be governor, at the expiration of the six months; and. consequently, that the act was no longer in force, the same being limited to continue, only, so long as Mr. , Worsley should continue to be his majesty's captain-general, and governor-in-chief, and in that quality, personally reside, in the island. But, I apprehend, that this case will turn upon its own particular circumstances, and the reasonable construction, which is to be made of the act, for settling the X6000 per annum, abstracted from any regard to the commission, which is not mentioned in it. ; I take it, then, to be. clear, that the intention of the law was, to make a suitable provision for his excellency, as long as he should continue in his government; for to continue his majesty's captaingeneral, is undoubtedly the same as if the words had been, to. continue the kings captain-general} and since the king, in a legal understanding, never U 2 Digitized by LjOOQle 228 Opinions of ' \_qfthe Cotamii dies, it seems to me, that those words dOnot con* fine such provision for the governor, to the then reign onty^ but that they take in the whole time of his residence here, as chief magistrate, which con* struction, I think, is plainly indicated by the preamble to the act. Now, it is certain, that Mt. Worsley has continued personally to reside, in this island, ever since his first arrival, in the quality of captain-general, &c., and that he hath, durihg that time, exercised all aete of government, in every respect, without interruption; whereas, if the royal proclamation was not sufficient (here, in one of the king’s colonies) to continue his excellency in his government, from the end of the six months, to the date of the neW commission, I conceive all such acts of his, during that interval, as well as those of subordinate magistrates, and judges, Were abso-luteiy void, and there Would have been a total discontinuance of all process and causes, both civil and criminal, throughout the island, which would introduce the utmost confusion, in point Of property, and occasion other inconveniences of the most dangerous tendency. If, then* the second proclamation did effectually prevent these fhtal consequences, which the nature and necessity of the thing, as well as the general practice of all in Authority at that time, (and perhaps of many Who bow start the objection,) doth evince, it must be allowed, that Mr. Wbrsley continued his majesty’s Digitized by GooQle CoMtitutions.] Eminent Lawyers. 2?9 captain-general, and governor-in-chief, of this island, without intermission; and from thence, it will as strongly follow, that the act for supporting the honor and dignity pf the government, is not determined. But, admitting there were any doubt of this matter, I should think it the safest way, for such as are concerned in a public capacity, to do what is required of them by the act, since it hath not yet been declared void by a competent authority ; but, on the contrary, it is manifest, from the governor’s new instructions on this head, that it is taken to be still in force, by the same sovereign power, which confirms or repeals all laws made in this place. And as the performing the duties required by the act will avoid the penalties other? wise to be incurred, so it will, at the same time, leave every one at liberty to try,' if he pleases, the validity of it, in the courts of law. Upon the whole, I am of opinion, that it will be most advisable, for the gentlemen of the vestry, to proceed and apportion the tax, in like manner, as they have hitherto done; but they may, however, for the satisfaction of such as are dubious, make a minute in their parish books, reserving to themselves all benefit and advantage of exception, in case the law should be deemed not in force, which, I con--ceive, will be sufficient to put the gentlemen of the vestry upon an equal foot with other persons, in tiiis respect, whilst it prudently leaves, at the same Digitized by GooQle 230 Opinions of [Of the Colonial time, the point in dispute to be determined by the proper judicature. April 10, 17^9. J. Blenman. (2.) The opinion of Mr. Thomas Reeve, on the same subject, in 17^7-8. ■ I am of opinion, that this act is not determined by the demise of his late majesty, king George, but will remain in force, as long as Mr. Worsley continues governor of Barbadoes, and shall personally reside ih the island. It is observable, that the tax, &c. is granted to his majesty, his heirs, and successors, during the continuance of the act: it is limited to continue, for so long time as Mr. Worsley shall continue to be his majesty’s captain-general, &c. Yet, I conceive, these words will have the same construction, as if it had been limited to continue so long as Mr. Worsley should be the king’s captain-general; and as the king, in law, never dies, I conceive the demise of king George the First will not be a determination of this act. Jan. 15, 17.27. Thos. Reeve. This act is to continue no longer than Mr. Worsley shall continue governor, and be personally resident on the island; if he once ceases to be governor, though he hath afterwards a new commission granted him, I conceivb the act is determined* By the statute of 6th Anne, the com* missions of the governors of the plantations are continued, for six months after the demise of the Digitized by knOOQle Constitutions.^ Eminent Lawyers. 231 queen, or her successors, and if a new commission was granted to Mr. Worsley, within the six months after his late majesty’s demise, it may be a continuance of him as governor, within the intention of, the act, though I think this point is something’ doubtful; but if the six months expired, and then' a new commission was granted, it seems to me, that the act is determined. • Feb. 1, 1728. Thos. Reeve. (3.) Mr. West's opinion, in 1725, whether a governor can vote as a councillor. . To the right honorable the lords commissioners of trade and plantations. .; . My lords. In obedience to your lordships’ command, signi-> fied to me by letter from Mr. Popplej dated the 24th day of November last, I have considered the following quare, Whether a governor can vote, as a councillor, in the passing of bills, when the council sits in their legislative capacity ? ■ . Upon consideration of which, and of the gover-nor*s commission, and instruction, I am of opinion^ that a governor cannot,. by law, vote as a council* lor in the passing of bills, when the council sits in their legislative capacity. - - Jan'. 8,1724-5. Rich. West. (4.) Mr. West’s opinion, in 1719, concerning a governors power to prorogue the assembly, under an adjournment. . . Digitized by Google 232 Opinions of [Of th* Colonist • To the right honorable the lords commissioners of trade and plantations* . My lords. In obedience to year lordships’ commands, sig" nified to me by Mr. Popple, I have considered the following question, vie. Whether an assembly, under adjournment, or prorogation, may be prorogued without a meeting, according to such previous adjournment, or prorogation? J^nd I am dearly of opinion, that it may. . But, as I believe so general an answer to the question, will not he esteemed, by your lordships, to be satisfactory, I shall beg leave to be a little more particular, in giving some reasons for such my opinion. • It may be made a question, whether the general assemblies, of the several provinces, in the West Indies, may be intitled to those privileges, which are claimed by, and have, by the crown, been allowed, to the parliaments of England) but it is most certain, that the prerogative, in relation to their general assemblies, is at least as extensive, as it ever was in England. In respect to our parliaments, and this prerogative of the crown, whatever the extent of it may be, every governor, by his commission, is empowered to exercise in his particular province. • . — The prerogative in the West Indies, unless where it is abridged by grants, &c, madetothejahabitT Digitized by knOOQle Coitstitvtiouf,} Eminent Lawyers. 233 ants of the respective provinces, is that power over the subjects, considered either separately or collectively, by their representatives, which, by the coin* mon law of the land, abstracted from all acts of parliament, and grants of liberties, Ac. from the crown to the subjects, the king could rightfully exercise in England. The only point of prerogative, which this question relates to, is that power, which the crown ha^ of summoning, proroguing, &c. of parliaments; and here your lordships will be pleased to observe, that this branch of the prerogative does, at this time, subsist entirely upon the foot of the common law, and custom of parliaments, which, in this respect, must be considered, as part of the common law, which has never been, in this particular, any* wise abridged or circumscribed, by any act of parliament ; and, therefore, if the affirmative part of the question is impracticable, in England, it is impossible a governor should be empowered to practise U, in America, The determination, therefore, of tbit question, depends entirely upon the customs of our English parliaments^ in relation to which, I shall observe to your lordshipp these two particulars, i. e. the present practice in our parliament, as it appears to the public, and the words of the writ of prorogation. Every parliament, whether it be upon original Digitized by knOOQle 234 Opinions of [Of tie Colonial summons, or prorogation, &c. is always appointed to meet, at a day certain, on which day the mem-’ bers are obliged to meet together, unless the king does think fit to discharge them from their attendance; and as their obligation to attend does arise from writs under the great seal, their discharge must likewise flow from the same seal. Now, if a parliament is summoned to meet, on a certain day, and the crown thinks it inconvenient the parliament should assemble on that day, on which the writs of summons were returnable, a proclamation is issued (as it is generally supposed) to prorogue the meeting of the parliament to some further day, without there being any necessity of their meeting upon that day, upon which their attendance was required, by the original writ of summons. In this present parliament, we see it prorogued from time to time, and proclamations are constantly issued, to notify it to the kingdom; and, although it is usual upon those days, to which the parliament stands prorogued, and when a further prorogation is to be made, for several lords and members of the house to attend in the parliament chamber upon that day, yet such their attendance is no-ways necessary, but the prorogation would be just as good,, if they were all in the country, and the clerk of the parliament read the writ to his fellow-officers; for the writ of prorogation beln£ always tested some, day before the day} Digitized by knOOQle Constitutions.] ’ Eminent Lawyers. 235 to which the parliament stood prorogued, all the members are thereby actually discharged from their attendance. I would beg leave further to observe to your lordships, that it is not by these proclamations, that parliaments are prorogued, but that they do always suppose a writ patent for the prorogation, which writ was anciently, when a prorogation was intended, sent to the sheriffs of the several counties, by whom it was proclaimed, in order to save the members the trouble of coming from town, and the counties and towns they represented, the expence of theit job rnies; tout the latter practice has been, to supply this by printed proclamations, though, to this day, according’to the ancient custom, the writ is constantly read in the parliament chamber: and, that your lordships may judge whether the members were discharged from attending on the day to w’hich the parliament stood prorogued, and that consequently no meeting could be necessary, I must beg leave to mention to your lordships some clauses of the writ. But first, I must observe, that the writ is not directed to any particular person, but is general, like a proclamation, the style of it is thus: “ Pradi-lectis et fidelibus nostris pralatis, magnatibus et proceribus regni nostri Anglia ac dilectis et fidelibus nostris militibus, civibus, et burgensibus dicti regni nostri; Ke.” and then, after specifying the day to Digitized by knOOQle 236 Opinions of [Of the Colonial which the king thinks fit further to prorogue his parliament, there is a clause inserted, for no other purpose, but to discharge the members front meeting, on the day to which they were antecedently summoned, viz. “ Ita quod nec vos, nec aliquis ves-trdm ad dictum diem apud civitatem pradictam pomperere teneamini, seu arctemini; volumus enim vos et quemlibet vestrum inde erga nos peniths exo-nerari, He.” Now every sessions being, in law, a distinct parliament, and every prorogation putting an end to a session, the obligation upon the members to meet, on the day mentioned, in the writ of prorogation, is obviously the same as it was upon the original writ of summons; and consequently if the crown can, by writ of prorogation, discharge the members from attending on the day fixed, in the first writ of summons, the crown can, in like manner, by another writ, discharge them, as to the . day, to which the parliament stands prorogued. As to adjournment, whether it be a royal adjournment, or an adjournment flowing from the votes of the houses, as the crown could undoubtedly dissolve them, without suffering them to jneet, which puts an end to their very being, so likewise (which is an act of less potfer) can it prorogue them, which is only determining that sessions, which was continued by their adjournment, though, doubtless, if the crown intends to continue the sessions, they must be suffered to meet, and it Digitized by UooQle Constitutions:} Eminent Lawyers. 237 must always be in the power of the crown, ad libitum, to put an end to one session, and to commence another. May 27, 1719. Rich. West. (5.) The opinion of the attorney and solicitor-ge* neral, Trevor, and Hawles, in 1700, on the deter* mination of a governor's commission. To the right hon. the lords commissioners' of trade and plantations. May it please your lordships. , Upon perusal of their excellencies, the lords justices’ letter to the president and council of Nevis, dated the 29th September, 1698, and of a copy of a commission, granted by his majesty to colonel Fok, dated the 13th November, 1699, we are humbly of opinion, that the powers and authorities, given by the lords justices to the president and council of Nevis, were determined by the commission to colonel Fox, upon the arrival of colonel Fox there, and publication of his commission, and we conceive he might upon his coming there before colonel Codrington, by virtue of his commission, dispossess the president and council, and assume to himself that government, until the arrival of colonel Codrington there. ‘ August 9, 1700. Tho. Trevor. J. Hawles. (6.) The opinion of the attorney and solicitor-general, Yorke, and Talbot, on the effect of notice on the validity of a governor's commission. Digitized by Google 138 - Opinions of [Of the Colonial . The lords proprietors of Carolina having always • appointed governors of that province, before they made a sale thereof to the crown, those governors, with the consent of the council and assembly there, passed laws, and have continued so to do, even since the purchase made by the crown, not having notice of the said purchase. Qutere.—Whether any laws passed after,the said purchase by the propriety governors, in their names, bfore notice of the sale, are valid? Whether laws passed in the proprietors’ names, after notice of such purchase, and before the king appointed a governor of his own, be valid ? We are of opinion, that laws passed by the governor, appointed by the lords proprietors, and in their names, after the sale, and before notice thereof arrived in the province, are of the same validity as such laws w’ould have been, if they had been passed in like manner before such sale; but that any laws passed in the proprietors’ names, after notice of their having conveyed their interest to the crown, are absolutely null and void. August 11, 1732. P. Yorke. C. Talbot. (7.) The opinion of Mr. Thomas Reeves, and Mr. Lutuyche, on the continuance of the governor's commission. • This act is to continue no longer than Mr. Worsley shall continue governor, and be personally resident on the island. If he once ceases to be go- Digitized by UooQle Constitutions.} Eminent Lawyers. 239 Vernor, though he hath afterwards a new commission granted him, I conceive the act is determined. By the: stat, of 6 Anne, the commissions of the governors of the plantations, are continued for six months after the demise of the queen, or her successors; and if a new commission was granted to Mr. Worsley, within the six months after his late majesty’s demise, it may be a continuance of him as governor within the intention of the act, though I think this point is something doubtful; but if the six months expired, and then a new commission was granted, it seems to me that the act is determined. February 1, 1728. T. Reeve. I am of opinion, that upon the demise of his late majesty, the act for granting the £6000per annum did not determine; for I think it is clear, that the governor’s commission continued;for the spaceof six months after the death of the king, by virtue of an act of parliament, in queen Anne’s reign, unless the commission was superseded in the mean time; and if the commission was determined by ending at the six months, I am of opinion, that the act had determined also, though the governor had been appointed afterwards, because he once ceased to be governor under any commission. But if the fact was, that within the six months he had a new commission, it is doubtful, whether hiscontinuing governor, without intennission, will not be sufficient to intitle him to the ^6000 per annum by the act; and upon consideration of these three clauses, I am inclinable to Digitized by GooQle Opinions Of . [Of the Colonial 240 think, that it will entitle him so long as he remains governor, and continues without intermission; but perhaps it might be made plainer by seeing the whole act. February 1, 1728. T. Lutwychs. N.B. The first commission, dated 11th January, the 8th year of our reigh. The second commission, dated 8th May, 1728, being the first year of out reign, which was eleven months after the late king’s feign. (8.) The opinion of the attorney and solicitor-general, Ryder, and Murray, on the question, whether the great seal of the province should not be affixed to every act of government, that requires a seal, in the colony. Sir. We have perused the case yon inclosed to us, by the order of the lords commissioners for trade and plantations, and find it necessary to trouble you, to transmit to us, a copy of my lord Howe’s commission, which is but shortly stated therein, that we may the better judge, when we peruse the Whole, whether the office of surveyor-general was in his power to dispose of, by that Commission, and whether his private seal at arms, be a proper way of putting that power in execution ; we therefore desire to see the same, and to know, whether the governor’s private seal is commonly made use of, in the grants of any, and what, offices in the plants* tions. Digitized by knOOQle Constitutions.] _ Eminent Lawyers. 241 It will likewise be necessary to be informed, whe. ther the instance, in 1690, of a grant of the same nature, be the only instance of the grant of that office, or whether it has been usually granted in the same, or any, and what, different manner, and under what seal, and whether generally, or for life, or at pleasure. February 26,1736. D. Ryder. J. Strange. Quare.—Whether the great seal of the province, or island, should not be affixed to every act of government, that requires a seal, notwithstanding it ■may have been the custom to appoint certain officers, and to issue proclamations, under the governor’s private seal at arms ? We have perused the copy of my lord Howe’s commission, and Mr. Popple’s answer of the 17th inst. to our letter, desiring some further information, and which we have returned, annexed to the «case. And as to the first quare, we observe, that there is no part of the commission, that gives my lord Howe a power to grant the office in question, the only clause, which we can find relating to granting offices, extending only to judicial offices, and the ministerial ones attending upon them. But supposing a power in the governor to grant the office in question, we think the seal to be used upon that occasion ought regularly to be the great seal: but if there never was any grant, otherwise, than under the seal at arms of the governor, and R Digitized by knOOQle 242 Opinions of [Of the Colonial that has been used in the grant of other such like offices, such usage may dispense with the general rule, requiring the great seal, and the grant may be good notwithstanding; and then, we are of opinion, the death of my lord Howe will not put an end to the grant. As to the second quare, we are of opinion, that if such proclamation, as is mentioned, had issued, it would have made no alteration, as to the continuance of those civil and military officers, in their employments, who hold the same, under the hand, and private seal of the governor. In answer to the third quare, we are of opinion, it is safest, and therefore most advisable, that all acts of government should be under the great seal of the island;though if there has been such an usage, as is mentioned in the quare, we think, that it may be sufficient, to justify the use of the private seal at arms, in those cases, to which the custom extends, which however are liable to disputes, that can neveR arise if the great seal is used. February 26, 1736. D. Ryder. J. Strange. (9.) \Fhe opinion of the attorney and solicitor-general, Ryder, and Murray, of the governor’s right to prorogue the assembly to anyplace, within his government. To the right hon. the lords commissioners for trade and plantations. Digitized by )OQle Constitutions.] Eminent Lawyers. 243 May it please your lordships. In pursuance of your lordships’ desire, signified to us by Mr. Hill, in his letters of the 30th of April, and 11th of May last, referring two acts passed in his majesty's province of North Carolina,: in 1746, viz. " an act for the better ascertaining the number of members to be chosen for the several counties within this province, to sit in general assembly, and for establishing a more equal representative of all his majesty’s subjects, in the house of burgesses;’* " an act to fix a place for the seat of government, and for keeping public offices, for appointing circuit courts, and defraying the expense thereof, and'also for establishing the courts of justice, and regulating the proceedings therein;” for our opinion, whether the said acts are proper to be confirmed by his majesty, and transmitting several papers relative thereto, (all which are herewith returned): we have taken the same into consideration, and have heard council for, and against, the said “ act for the better ascertaining the number of members to be chosen for the several counties within this province, to sit in general assembly, and for establishing a more general representative of all his majesty’s subjects, in the house of burgesses.” Although the governor of North Carolina may certainly prorogue the assembly, to meet, at such place, and time, as he shall see,proper, and although it has not been made out sufficiently to our satisfaction, thatthe presence of a majority of the r 2 Digitized by GooQle 244 Opinions of (Of the Colonial whole assembly is absolutely necessary to the doing business, as alleged by the petitioners against the said last mentioned act; yet, these two acts appear to have passed, by management, precipitation, and surprise, when very few members were present, and are of such nature, and tendency, and have such effects and operation, that the governor, by his instructions, ought not to have assented to them, though they had passed deliberately in a full assembly; and we are of opinion, that they are not proper to be confirmed. ' December 1, 1750. D. Ryder. W. Murray. (10.) The opinion of the chi f-justice Morris, of New York, on the question, whether the ' change of the governor would dissolve the assembly. Queere.—-Whether a governor publishing a commission under the great seal, which determines that of a former governor, can legally meet, and act with the same assembly, that was chosen by virtue of the king’s writs, tested by the former governor, they standing, continued by adjournment; or whe-» ther the publication of such new commission, does ipso facto dissolve an assembly, so chosen, notwithstanding such continuance? In obedience to your excellencies’ commands, I have considered the above questions, and am humbly of opinion, that the publication of your excellencies* commission, determining that of brigadier Hunter’s, doth not dissolve the general assembly. Digitized by Google Constitutions.} Eminent Lawyers'. 245 chosen by virtue of the king’s writs, tested by brigadier Hunter, but that you may either meet them at the time they stand adjourned to, or adjourn them to a further time, if you think convenient, and legally act with them; and the laws made by you, and them, in the usual manner, will be as legally made, and as much binding, as any other acts of the general .assembly of this province, or as if they had been made by you, with an assembly chosen by virtue of his majesty’s writs, tested by yourself. I would not have troubled your excellency, at this time, with any thing but this direct answer to your question, had not a groundless notion, contrary to law, and the received practice, both of this, and all, or the greatest part, of his majesty’s dependent dominions, lately obtained, timong some persons, viz. that the determining the commission of a governor, has the same effects upon this province, as the demise of the king would have, both upon England, and this province. That opinion, if propagated with the zeal some weak men seem to entertain it with, will, at this time, be of dangerous consequence to the public peace, and may, for the future, be of no small prejudice, to the service of the crown ; I shall therefore give my reasons for the answer I have given, and endeavour to shew the absurdity of that notion. Our law books have but very little, to be met with, on this head, the powers of kings and parlia- Digitized by GOOQle 246 Opinions of (Of the Colonial ments, and their acts, being rather to be obeyed than disputed: however, they are not altogether silent on the subject, and afford us one rule in law, that I take to be sufficient to govern and determine this matter, it is in Paston’s case, 4th Edw. IV. fo. 43,44. Paston was outlawed, and the certificate of outlawry returned in the time of Ed. IV. by two coroners of the county of Suffolk, chose in the time of Hen. VI., and Paston’s council prayed'the outlawry might be reversed, because the power of the coroners, as well as other officers, determined by the demise of Hen. VI., to which he was answered, that coroners were chosen by virtue of the king’s writ, which election, certified into the chancery, is a judicial act of record, and judicial acts done in the time of the king, that was, remained, notwithstanding the demise of the king, and there* fore the coroners remained; to this was replied, that the election of knights of the shire was equally a judicial act of record, but did not operate so as to continue the knights after the demise of the king, because by such demise the parliament was discontinued, &c. The case is a long case, too long to transcribe, I shall therefore take it as it is abridged, by sir Robert Brooke, in the time of queen Mary, the law, in that point, of coroners and knights of the shire, being as above, viz. that the choice of both was a judicial act of record, but that it did not operate, so as to continue the knight of the shire, after the demise of the king, though it did Digitized by GooQle Constitutions.} Eminent Lawyers. 247 to continue the coroners: he says not, that a coro* ner is not made by commission, but by writ, and when he is elected by writ, this is returned into the chancery, and is a judicial act of record; and therefore, when the king dies, he shall remain, whereas all manner of conynissions cease by the demise of the king, as commissions of justices et hujus modi, but judicial acts remain, and so a coroner shall remain, till removed by the king’s writ (Catesby). But knight of the shire shall cease, when the parliament ceases, by demise of the king, or otherwise, ratio videtur, because the parliament ceases by it, contrary of coroners—that is, where the whole ceases, the constituent parts must also cease. It was an agreed point, that on the demise of the king the parliament was determined, though they do not tell us the reason why; but that we have, in the opinion of the judges in sir Henry Vane’s case, viz. every parliament is called to consult with the person of the king who calls it, and therefore, upon his death, it is determined; for they can no longer consult with him, for which end they were called* Kelgyn’sRep. f. 19. This shews why the demise of the king dissolves the parliament; but the reason is not the same on the determining the commission of a governor; for as every parliament, called to consult with the person of the king, who calls it, must determine upon the demise of such king, and every assembly here Digitized by GooQle 248 Opinions of [Of the Colonial being called to assist our captain-general, and go-vernor-in-chief of our province, &c. in general assembly, &c. though it dissolve on the demise of the king, in whose name the writ issued, the governor being not longer our governor, that is, the governor appointed by the king, in whose name the writ issued; yet should there be ten succeeding governors, during the reign of one king, the tenth would be as much our governor, that is, the governor of that king, in whose name the writ issued, as the first was; and the assembly being continued by prorogation, or adjournment, might, by virtue of that writ, as legally assist the tenth, as the first. Some persons may, perhaps, be of opinion, that, by our governor, is meant the person of the gover-' nor, testing the writs, and that the assembly is to meet him, as the parliament is to meet the person of the king, who calls them together. If this opinion be true, then the death, or removal of the governor will be equal (in that case, at least) with the demise of the king, and no lieutenant-governor, or president of council, could meet with such an assembly; and it was to no purpose, to direct the president here to continue the present assembly: but every day’s practice, in this, and all the other plantations, shews the weakness of such a notion, and that they may meet, and act, with other persons, than the person of the governor, testing the writ. Since, then, the person of the governor is no otherwise to be considered, in this Digitized by knOOQle Constitutions J. Eminent Lawyers. ' 249 Case, than as tile servant of the king that sent him, and the assistance intended by the writ, is not for his own, but the benefit of his master, whom he here represents, it is plain, both from the words, and intent, of the writ, that the assembly may as legally act with the tenth governor, and he with them, (the same king continuing,) as with the first; so that the determination of a governor’s commission capnot operate to dissolve an assembly, as the demise of a king does to dissolve a parliament, there being nothing like the same reason, or one of equal force, the nature, and intent of the writs being entirely different. As by the case of Paston, it was a point agreed, that, upon the demise of a king, the parliament discontinued, the reasons of which I have shewn, and, that they do not at all concern the determination of a governor’s commission: so another point, by that case agreed, is, that the choice of them is a judicial act of record, and that judicial acts of record remain. If, then, the death, removal, or determination, of a governor’s commission does not affect this province, and the assembly, in the same manner, that the demise of the king doth, then it will follow, that an assembly, regularly chosen, and returned, into the chancery here, is such a judicial act of record, as will remain, notwithstanding the determination of the governor’s commission, or such death, or removal, of a go-yernor. Digitized by Google 250 Opinions of [Of the Colonial That the death, or removal, of a governor has not that effect, is agreed oh all hands, for that does not determine his own commission, a lieutenant* governor, or president of the council, being directed and enabled to execute the powers of it; so that the matter must rest solely on the determination of the patent, and if that has not such an effect, the case will be pretty clear, that the determination of such commission does not dissolve the general assembly. First, the determination of the governor’s patent does not determine the office of any person holding, by patent, under the great seal of England, because such officer holds his office by the same authority, that the governor holds his; and if it cah be supposed, that the determining of one patent can determine another independent on it, the determining any other patent in the government, may equally conclude the rest, and the determining the secretary’s patent, as effectually determine the governor’s, and dissolve the assembly, as the governor’s can. Secondly, neither does it determine any office, held by the seal of this province! for patents, under the seal here, are often given by the king’s especial directions, and commands, in which the governor is always ministerial; and patents, under the great seal here, are as effectual, for all the purposes intended by them, as if they had been under the great seal of England, being derived from the same authority, viz. the king; for what he does by another, is of equal vali- Digitized by GooQle Constitution:!.] Eminent Lawyers. esi dity, as if done by himself, and only to be set aside the same way: therefore, offices held under the seal of this province are no more voided by the determination of the governor’s patent, than if the same offices had been held under the great seal of England. Thirdly, if the determination of a governor’s patent, has the same effects, with respect to offices, &c. here, as the demise of a king, such effect must be occasioned either, 1st, by the nature of the thing, or 2dly, by the express words of the patent to the new governor, or some other patent, signifying such to be his majesty’s pleasure. First, if, from the nature of the thing, (viz. that, upon the determining of a derivative power, all offices become void, that are held by patents or commissions, tested by the person or persons ex. ercising such derivative power,) then the present • governor’s patent will become void, upon the king’s return into England, and, for any thing we know, may be void at present, which it is ridiculous to suppose, and of dangerous consequence to the public administration, and peace, to maintain: it is therefore very clear, no such effect can arise, from the nature of the thing; and it will be as evident to any body, that reads the governor’s patent, that no such direction is contained in the words of that patent, nor is there any other letters patent, signifying such to be his majesty’s pleasure. If, then, the determination of a governor’s patent Digitized by Google 252 Opinions of [Of the Colonial does not affect this province, in such manner as the demise of a king would do, in the determining of offices, and commissions, which is the less thing, a fortiori, it cannot affect it so as to make a judicial act not to operate, i. e. to dissolve, an assembly, which is the greater. I shall, therefore, lay it down as a true position in law: that every judicial act of record remains, notwithstanding the death-or removal of a governor, or determination of the powers, by which he acts; an assembly, chose by virtue of the king’s writs, and the returns made into the chancery, or office here, is a judicial act of record ; therefore, an assembly so chose, &c. remains, notwithstanding the determination of the governor’s patent, k E. P. - ’When any question arises here, concerning a governor, or assembly, many are ready to ask, what the king, or parliament, of England does op a likp occasion: vainly thinking, that whatever is done by a king, or parliament, is fit to be drawn into example for, this place. However extensive that notion may be in America, it is rather to be laughed at than argued with; not but that the wisdom qnd regularity of a British parliament are very fit patterns, so far as they are imitable by us, But, as my lord Vaughan observes, under title process into Wales, when the question is of the jurisT diction in a dominion, or territory, belonging to England, the way to determine it, is to examine the law in dominions, the same, in specie, vyith Digitized by Google Constitutions.] . ' Eminent Lawyers. 253 that concerning which the question is. So the question being here concerning an assembly, and whether it is dissolved by the determining the powers of a governor’s commission, the way to determine it is, not to examine how far a king and governor, or a parliament, of England, and an assembly of this province, are alike, but to inquire into’the practice of dependent dominions, like ourselves, such as Ireland, and the plantations; and if we find the determination of the commissions in those places, never was thought to dissolve a parliament, or assembly, we have no reason to conclude it will do so here: in Ireland there was but one parliament chosen, which continued all, or the greatest part, of the queen’s reign, under a succession of several deputies. In Barbadoes, where, by a law of that, island, their assemblies are annual, I am informed it has been very common to act with an. assembly, chosen in the time of a former governor: it has been done in Virginia, in Maryland, while under the king, in Pennsylvania, nay, it has been done in this province, for colonel Fletcher, (justly styled the great patron of the church here,) met and acted with an assembly, summoned by colonel Houghter. And upon debate of this very question, which was started by some of the members of the then assembly, it was the opinion of himself and council, nemine contradicente, and of the. assembly, that it was a legal assembly, as you will see Digitized by knOOQle 254 , Opinions' of {Of the Colonial by the journals, if you please to inspect them. These journals were sent home; and, I am apt to believe, the opinion and practice were approved of, otherwise the governor would have been reprimanded, and the succeeding governors forbid the doing so, nothing like which has been done; and the earl of Ballamont, who succeeded him, was so far from thinking, that the assembly was dissolved, by his publishing the king’s patent, that (if I am rightly informed) he published a proclamation to dissolve the assembly chosen in the time of colonel Fletcher. So that the opinion of an assembly’s dissolution, by the publishing a new patent, is but of late date, and I am humbly of opinion, without any foundation in law. Lewis Morris. (11.) The opinion of Mr. Hamilton, an eminent latvyer of Pennsylvania, on the same subject. - Copy of a letter to Dr. Johnston, one of the council for the province of New York, from Mr. Hamilton, an eminent lawyer, at Philadelphia. Sir, At your request (though in much haste, this being the time of our supreme court), I have considered how far it is agreeable to law, for a sue* ceeding governor to meet and act with an assembly, called by his predecessor; and, upon the whole, it appears to be thus: First, I find it to be the practice of several of the governments under the crown, to meet the same assemblies called by Digitized by V X Constitutions.] Eminent Lawyers. 255 their predecessor. I also find the justices and judges, appointed by the former governor, continue to act by the same commission, under a succeeding governor, and that their commissions are never renewed, but when the governor thinks fit to make some change in the magistracy. Thirdly, that no military officer receives any new commission from a succeeding governor. These things I know to be fact; and the reason, then, must be, because the writs, and commissions, by which the persons are called, or commissionated, are the king’s writs and commissions, and not the governor’s, that grants them. These considerations, with the practice of Ireland, who had but one new parliament, in the queen’s time, and had six several lords-lieutenants, besides ten several lords-justices, is full proof to me, that the test of a writ of summons, for holding an assembly, being changed, does not, by any means, dissolve the assembly. As to the objection of the parliament of Ireland being summoned by writ, under the great seal of England, it is a mistake : for, both history and law do agree, that the parliament is summoned, or called, by the lordlieutenant, under the great seal of Ireland, who indeed cannot call a parliament, until he has obtained licence from the king for so doing, under the great seal of England. Now, a governor in the plantations is not restrained, or tied up, for his commission gives him a Digitized by GooQle 256 Opinions Of [Of the Colonial power generally to do those things, which, in their nature, are to be done by a lord-lieutenant, by special licence. See the manner of calling a parliament in Ireland, (upon a “question, which arose about the exposition of Poyning act, as it is called,) resolved by the two chief justices, the chief baron, and the king’s learned counsel, in 4th Coke’s Institutes, fol. 353. . * Heylin, in his Cosmography, says the lord-lieutenant summons a parliament by the king’s appointment. Collier’s Historical Dictionary says the lordlieutenant calls, and holds, the parliament of Ireland by the king’s licence. The present state of Great Britain, published in the year 1718, the fourth edition, title Ireland, page 58, says, the parliament is, at the king of England’s pleasure, called by the lord-lieutenant, or deputy, and by him dissolved. That the test of the writ is in the lord-lieutenant’s name, appears from the history of that country, and the book, called the History of the Reduction of Ireland. That it must be so, appears from the form of the summons, made by a guardian of England, in the king’s absence, for calling a parliament, 4th Coke’s institutes, fol. 6, at the foot of the page. Then, if it be so, that the test must be in the name of the officer, who calls the parliament, as undoubtedly it is, see how absurd it is to say, that Digitized by GooQle Constitutions.-] Eminent Lawyers. 557 the determining that officer’s Commission, can dissolve the parliament, when the contrary has always been practised. In the first year of queen Anne, the duke of Ormond was made lord-lieutenant in the room of the earl of Rochester. In February, 1702-3, he meets the same parliament, that Was in being, and acts with them. Ormond continued lord-lieutenant till the 7th of April, 1707, and then Pembrooke was appointed in his mom: he arrives at Dublin the 24th, and, on the 7th of the next month, meets the parliament then in being. On the 29th of November, he prorogued the parliament to the 6th of May next, and returns to Britain. In October, 1708, the lord Wharton is made lord-lieutenant, in the room of Pembrookej and, April the 21st, arrives at Dublin, and then prorogues the parliament, then in being, to the 5 th of May following, at which day it meets; and it appears, m the speech of the commons, that that parliament had held many sessions before, so it was not one of his calling. On the 30th of August, 1709, the parliament is prorogued to the 13th of March. On the 19th of May, the lord-lieutenant, who had been over in Britain, returns, meets the same parliament, and orders the choosing of a new speaker, in room of Allen Broderick, who was called up to the house of lords, as chief justice of s Digitized by UooQle 258 Opinions of [Of the Colonial the King’s Bench, in Ireland, to give his assistance there. August the 28th, the parliament was prorogued to the 8th of March next, and the lord-lieutenant goes for Britain. July, 1711, the duke of Ormond appointed lord-lieutenant, and arrives at Dublin, and meets the same parliament, the 8th of July . November, 1711, parliament prorogued to the 2d of September, 1712, and goes for England. This is a history of matters of fact, by which it appears, that the removal of a lord-lieutenant, or governor, who tests a writ of summons, for a parliament, or an assembly, in his own -name, neither does, nor ought, to dissolve that parliament, or assembly. , These are the grounds of my judgment, for the legality of the present assembly meeting the governor. I have spent as much time as my private affairs would permit, in taking the opinion of the men of the best judgment here, (Philadelphia,) and I have met with none, that differ from me in judgment. But how far it may be convenient for the governor to take these measures, though lawful, I cannot say; nor can I see what can be objected against his so doing, unless the people say, that it is striking at their privilege, in denying them the opportunity of a new choice, and this is fully an- Digitized by GooQle Constitutions.'} Eminent Lawyers. 259 swered; by the arguments, in favour of the septennial bill. Sept, 27, 1720. W. Hatton. (12.) Mr. Fane’s opinion on the nature of the bond to be given by the governors of proprietary governments, for observing the acts of trade. To the right hon. the lords commissioners of trade and plantations. My lords. In obedience to your lordships* commands, sig-jaified to me by Mr. Popple’s letter of the 14th of this instant, wherein your lordships are pleased to desire iny opinion, in point of law, whether in obligations, which are made to the king’s majesty, the word executoribus, or successoribus, ought to be made use of. The act of the 33d of Henry VIII. chap. 39, expressly directs the word executoribus to be used in all obligations to the king, considering him in his natural capacity; and a punishment of imprisonment is, by the same act, inflicted upon such persons as shall make, or take, such obligations, unless it is in the terms prescribed by that act.- Therefore, I am humbly of opinion, since this law has so particularly directed the manner of taking it, the king’femembrancer, who is the proper person, for seeing it done, in the most regular and legal method, cannot safely act, in this matter, but agreeably with this law. But supposing this act was not in force, I apprehend a bond, the s 2 Digitized by knOOQle 260 Cainions of [Qf the Cobnut conditions of which are of the same nature with ma* jor Gordon’s, should more properly be taken to the king, his heirs, or successors. Feb. 18,1786-7. Fran. Famb. (13.) The opinion of the attorney and solicitor, general, Trevor, and Hawks, on the trial of a lieutenant-governor, and other legal topic*. To the right bon. the lords commissioners for , tra^e and plantations. In answer to your lordships’ quatries, signified to us by Mr. Popple, the 30th of April last, relating ' to offences committed by captain Norton, and against the act for regulating abuses in the planta* tion trade: weare of opinion, that for such offence or wilful neglect, the lieutenant-governor, captain Norton, may be indicted* and tried in the court of King’s Bench, by virtue of the act, for punishing governors of plantations, for offences committed by them, in the plantations; but we doubt, whether he * will incur the penalty of one thousand pounds by the act, made the 7th and 8th of the king, for regulating abuses in the plantation trade*; for the words of the act extend only to governor?, and commanders-in-chief, and is given only, for the offence of not taking the oaths, or putting the acts in execution ; but he will be finable, at the discretion of the court. June 4, 17OT. Tao. Trxvor. Jo. Rawles. . ed by knOOQle CmutUutions.] . Eminent Lawyers, 861 Second. Of the council. (1.) The opinion of ike attorney and solicitor*, general, Murray, and Lloyd, in 1765, On the question, whether the governor and council have the power qf making laws. . To the right bon. the lords commissioner for trade and plantations. May it please your lordships^ Pursuant to your lordships’desire, signified to us by Mr. Hill, in his letter of the 31st of March last, setting forth that a doubt having arisen, whet ther the governor and council of his majesty’s province of Nova Scotia have a power of enacting laws, withip the said province, and Jonathan Bel-chier, esq. having transmitted to your lordships his observations thereupon, enclosing to ps a copy of the said observations, together with copies of several clauses, in the commission, and instructions, of the said governor of that province, referred to, (all which are herewith returned), and desiring our opinion, whether the said governor and council have, or have not, a power to enact laws, for th# public peace, welfare, and good government of the said province, and the people and inhabitants thereof : we have taken the said observations and Clauses, into our consideration, and are humbly of opinion, that the governor and council alone are not au« thorized, by his majesty, to make laws. TSI them can he an assembly, bis majesty has ordered the Digitized by VjOOQIC 262 Opinions of [Of ike Colonial government of the infant colony, to be pnrsuant tb his commission, and instructions, and such further directions, hs he should give, under his Sign manual, Or by order'in council. April 29, 1755. W. Murray. * J : Rich. Lloyd. (2.) The opinion of the attorney-general Pratt, on the seoeral powers of the council and assembly of Maryland. ; As to the nomination of officers by the lower house. Ih my opinion the sole nomination of those commissioners, who are new officers, appointed by this bill, belongs neither to the proprietary, nor the lower house; but, like all other regulations, must be assented to, by both, but can be claimed by neither. The proprietary’s charter intitles him, to nominate all constitutional officers, and all others, which by the laws are not otherwise provided for; but I do not conceive my lord Baltimore has any original right, to nominate new officers, appointed for the execution of a new law, without the consent of the two houses, nbr, on the other hand, have the lower house any such independent authority; and, therefore, I think the upper house are' right, notwithstanding this claim, in which they might be supported by the proprietary, because it is unreasonable, for one branch of the legislature, to assume a power of taxing the othera by officers of their single appointment. Digitized by knOOQle Constitutions.'] Eminent Lawyers. 263 As to the insufficiency of the allowance of the commissioners of the loan office. My lord should not meddle with this question, which is proper to be discussed, and settled, by the two houses, as it concerns only the quantum of allowance, for the officers, and does not encroach upon any of the proprietary’s rights. As to the duties required from lord Baltimore’s private officers, his agent, and receiver. Here, my lord ought to interpose, for it is a great indignity to compel his lordship’s agents into a public service, without making them a liberal allowance, and compensation, for their trouble. As to that required from the sheriffs. This my lord will leave to be debated by the two houses. As to.the power of the upper house to examine claims and accounts. The upper house are right in making a stand to this clause in the bill, and should take care how they admit encroachments of this kind, when they are supported, by arguments, drawn from the exercise of the like rights, in the house of Commons here. The constitutions of the two assemblies differ, fundamentally, in many respects ; our house of commons stands upon its own laws, the lex parliam. whereas assemblies, in the colonies, are regulated by their respective charters, usages, and the common law of England, and will never be allowed to assume those privileges, which the house of commons are entitled to justly Digitized by C He 264 Opinions of [Q/'thc Colonial here, upon principles, that neither cap, nor roust be applied to the assemblies of the colonies. As to the narrowness of the exemption of persons to he assessors. My lord has nothing to do with this. As to the double tax on nonjurors. ' My lord would do right to join with the upper house, in opposing this double tax, because it is a breach of public faith, and tends to subvert the very foundation of the Maryland constitution, and can be excused, by nothing, but a well-grounded jealousy of dangerous practices, and disaffection, in the papists. As to the clauses enabling debtors and tenants to retain. This is very absurd, but my lord need not meddle with it. , As to the tax on non-residents and imparts. The upper house are clearly right, in that part of the objection, which relates to JBritish merchandise imported; for I am satisfied the mother country will never endure such an impost upon their trade. The province may, by the same rule, prohibit the importation, as well as they may tax the merchandize imported; and it seems tq be a very unwarrantable attempt, to make the English importer of goods, carried to Maryland, in the way of trade, pay a tax for tire defence of that province, for no other consideration^ bpt the liberty of trading there, to which they have Digitized by Google Constitutions.} Eminent Lawyers. 265 an original right, which cannot be invaded, diminished, or even regulated, by any thing this pro-, vince ever can do. As to the tax on tenants for life. My lord will leave this to be settled by the two houses. As to the tax on uncultivated lands. This seems to me a very unreasonable tax, and ought to be resisted by the proprietary, because it seems principally to be levelled at his estate. As to the tax on plate, and ready money. My lord has nothing to do with this. As to the tax on the governor. This is rather an uncivil, than unjust tax; and, therefore, the upper house would do.well to oppose it, as far as they may in reason. Having given my sense on each of the objections, so far as they have been taken up and maintained by the upper house, in the margin of that part of the case, I shall only add here a general piece of advice to lord Baltimore, that in this disposition of the lower bouse to assume to themselves any privilege, which the English house of commons enjoy here, his lordship should resist all such attempts, where they are unreasonable, with firmness, and should never allow any encroachments to be established, on the weight of that argument singly J f°r I am satisfied neither the crown, nor the parliament, will ever suffer those assemblies tn Digitized by GooQle 266 Opinions of ' [Of the Colonial erect themselves into the power, and authority, of the British house of commons. C. Pratt. (3.) The opinion of the attorney and solicitorgeneral, Henley, and Yorke, how far the proclamation of martial law suspends the functions of the council. To the right honorable the lords commissioners for trade and plantations. May it please your lordships. In pursuance of your lordships’ commands, signified to us by Mr. Pownall, in his letter of the 22d instant, acquainting us, that your lordships had received two letters from Henry Moore, esq. lieu-tenant-goveijior of Jamaica, informing your lordships, that he bad, in consequence of advices, which he had received of an, intended invasion of that island^ caused martial law, to be proclaimed; and that his majesty’s council, upon being summoned to meet, in their legislative capacity, had refused to do any business, alleging, that neither they, nor the assembly, had any right to sit, or transact business, after the publication of martial law; and also transmitting to us copies of the lieutenant-gover-npr’s letters, and of two other papers, containing the reasons assigned by the council, for their opinion, and their answers to several questions propounded to them by the lieutenant-governor, and desiring us to take the same into our con* Digitized by knOOQle -Constitutions.] Eminent Lawyers. 267 sideration, and report to your lordships our opinion thereon: we have taken the same into our consideration, and are of opinion, that there is no foundation, for the notion of the council, that the proclaiming of martial law suspends the execution of the legislative authority, which may, and ought, to continue to act, as long as the publio exigencies require. Nor do we apprehend that, by such proclamation of martial law, the ordinary course of law and justice is suspended, or stopped, any further than is absolutely necessary, to answer the then military service of the public, and the exigencies of the province. * Jan. 28, 1/57. Robt. Henley. ; . C. Yorke. Third. Of the representative assembly. (1.) The opinion of the attorney-general Raymond, on the king’s power, to grant the privilege of having an assembly, and on the right given by the king, to particular districts, to choose delegates. ■ . To the right hon. the lords commissioners for trade and plantations. May it please your lordships. In humble obedience to your lordships’ commands, signified to me by Mr. Popple, by his letter, dated the 14th day of June, 1722, that I should send your lordships my opinion, whether his majesty may legally alter the present constitution Digitized by Google 268 opinions of [Qfthe Colonial of the assembly in New Jersey, in such manner as Mr. Burnett, his majesty’s governor, there says, in his letter, would be for his majesty’s service, and in what manner it might be most properly done, (for which purpose, the extract of Mr. Burnett’s letter, and his printed speech, to the assembly, in which is set out a true copy of his instruction, and the printed acts of that colony, were sent to me, and are herewith sent back to your lordships,) I have read over the said extract of Mr. Burnett’s letter, his speech, and the act of assembly supposed to have been passed in lord Lovelace’s time, in New Jersey, page 5, intitled, “an act for regulating the qualification of representatives, to serve in the general assembly, in the province of New Jersey;” and considered thereof. And I certify your lordships, that, as the right of sending representatives to the assembly, and the qualification of the elector and elected, for any thing appearing to me, were founded originally on the instructions given by the crown to the governor of New Jersey, and, as is observed by Mr. Burnett, lias already received alterations, by different instructions, given in lord Cornbury’s time, and the election, which before was left in all the freeholders of East Jersey and West Jersey, respectively, tp choose twelve representatives, was altered, and fixed in the method now established, as those new instructions given in lord Cornbury’s time, made the alteration, which at present is in Digitized by GooQle Constitutions^ Eminent Lawyers. ' 969 force, I am of opinion, by the same reason, by new instructions to be given by his majesty, bis majesty may lawfully make such establishments, as to . the electing, and sending, representatives to the assembly, as Mr. Burnett, in his letter, desires; and indeed the reasons used by Mr. Burnett, in favour of such an alteration, seems to me to have a great weight. But if there had been any act of assembly passed, and approved by his majesty, whereby the manner of choosing representatives, and the qualifications, had been fixed, that would * have had a different effect; but nothing of that na> ture appears to me, for, as to the act said to be passed, by lord Lovelace, it being an act contrary to the instructions, and never approved, by the crown, seems to me void, which Mr. Burnett has observed in bis letter. Therefore^ upon the whole matter, I apprehend his majesty may, in point of ' law, comply with Mr. Barnett’s request, in empowering the new county of Hunterton to send two representatives, and restrain the town of Salem, from sending any representatives for the future, if it shall be his royal pleasure so to do; and the manner whereby it may be done, 1 conceive, may be by his majesty sending his governor there, new instructions, for that purpose. Sept. 16, 1723. Ro»rRaYMON». (2.) The opinion of the attorney, and solicitorgeneral, Hyder* and Murray, upon, the inuiag ^f writs, for choosing neto representatives. . Digitized by LjOOQle 270 Opinions of [Of the Colonial To the right hon. the lords commissioners for trade and plantations. May it please your lordships. In pursuance of your lordships’ desire, signified to us by Mr. Hill, in his letter of the 10th of June instant, representing, that your lordships having lately received a letter from William Popple, esq. bis majesty’s governor of the Bermuda Islands, dated the 16th of February last, relating, among other things, to his having, upon the assembly’s neglecting to meet at a certain time, to which they were adjourned, issued writs, for the electing new representatives, without the dissolution of the assembly ; and transmitting an extract of so much of the said letter, and copies of such papers therewith transmitted, as relate to this proceeding; and desiring our opinion, whether the said governor, when the speaker, and all the members of the assembly, neglected to meet, at the time to which they were adjourned, on the 5th day of February, in the morning, could legally issue writs, for choosing new representatives, without dissolving that assembly; and, whether the representatives, chose by virtue of such writs, issued as aforesaid, by the governor, without a dissolution of the assembly, will constitute a legal assembly, so as to make the proceedings of such assembly valid: we have taken the said papers into consideration, and -are of opinion, that neither the assembly was dissolved, nor did the members lose their seats Digitized by GOOQle Constitutions.] Eminent Lawyers. ' 271 by their not .meeting at twelve o’clock on the 5th of February, 1747-8, and that there was no ground, for the hasty step taken, in issuing new writs, for supplying their places: and, as the writs were issued, not upon the foot of any supposed dissolution, but to supply vacancies, that had not happened, we are of opinion, the members so returned on those writs were unduly chosen, and cannot constitute, or sit, as a legal assembly. June 18, 1748. D. Ryder. W. Murray. (3.) The opinion of the same lawyers, on the right of the crown, to enable particular towns, to send delegates to the assembly. ' To the right ,hon. the lords commissioners for trade and plantations. May it please your lordships. In pursuance of your lordships* desire, signified to us by Mr. Hill, in his letter of the 22d of January, 1746-7, representing, that your lordships having received a letter from Benning Wentworth, esq. his majesty’s governor of New Hampshire, in which he acquaints your lordships, that the assembly of that province have refused to admit the representatives of five towns, and districts, (to which he had iasued writs in his majesty’s name, to elect, and send members to the assembly,), to sit and vote in the choice of a speaker, and that Mr. Hill is directed by your lordships, to enclose to us an extract of so much of the said letter, as relates thereto, as also papers therewith transmitted, con- Digitized by GooqIc 572 Opinions of [Of th* Colmial taming an account of the assembly’s proceedings in this affair, and a copy of the twenty-eighth article of bis majesty’s instructions to Mr. Went worth, which relates to the settling of townships, (all Which are herewith returned,) and to desire our opinion concerning this matter, and what may be .proper for his majesty to do therein: we have taken the same into consideration, and are of opinion, that as the right of sending representatives to the assembly, was founded Originally on the commissions, and instructions, given by the crown to the governors of New Hampshire, his majesty lawfully may extend the privilege, of sending representatives, to such new towns, as his majesty shall judge to be, in all resects, worthy thereof. We therefore humbly submit, that it may be advisable for his majesty to send positive instructions to the governor, to dissolve the assembly, as soon as conveniently may be, and, when another is called, to* send writs to the said towns, to elect representatives, and support the rights of such representatives when chosen. March t8,1747- D. Rrett. W. Murray. (4.) Mr. Fane's opinion on the same poiPt. To the right hon. the lords commissioners for trade and plantations. My lords. In obedience to your lordships* commands, signified to me by Mr. Gellibrand, desiring my opi- Digitized by knOOQle Cottstittaims.y Eminent Lawyers. 273 nion Mi the matters contained in the extract of a letter from Mr. Wentworth, his majesty’s governor of New Hampshire, and in several other papers, relating to the proceedings of the assembly of that province, I have carefully read over the said extract of. Mr. Wentworth’s letter, the clause in the commission of John Cutts, esq. dated the 8th day of September, in the 31st year of king Charles the Second, relating to the calling the assembly of the said province, the clause in the commission of Sa. muel Allen, esq. governor of the said province, in the reign Of king William and queen Mary, relating to the said assembly, the 38th clause of the instructions given to the said governor Wentworth, in the year 1741, the copy of his majesty’s writ, by which the assembly of the said province was Convened, and the sheriff’s return thereon, and the copy of the proceedings of the said assembly, from the 24th day of January, 1744, to bhe 29th of the same month inclusive, which were sent to me, and are herewith returned to your lordships. And I beg leave to observe to your lordships, that, as the right of sending members to the general assembly of the said province, appears to me to be originally founded on the said commission to the said John Cutts, to be president of the council of the said province, by which commission, as well the persons, who are to choose such deputies, as the time add place of their meeting, are left to the dis-cretion of the said president and council: and, as T Digitized by GooqIc 274 Opinions of [Of the Colonial by the commission granted by king WiUiam and queen Mary, to Samuel Allen, esq. to be governor and commander-in-chief of the said province, the assembly Of the freeholders thereof is directed to be called, in such manner and form, as the said governor, by the advice of the council, shall find most convenient for his majesty’s service, which powers of the said governor and council, do not appear to me to have been taken away, or abridged, I am of opinion, that the governor and council of the said province, for the time being, may, by his majesty’s writ, command the sheriff of the said province, to make out precepts, to be directed to such towns, parishes, and districts, within the same, as they, the said governor, and council, shall think fit, requiring them to elect and send fit person's, duly qualified to represent such towns, parishes, and districts, in the general assembly of the said province. And it likewise appears to me, that the several precedents offered by the assembly of the said province, in support of the rights being in the said house, or general court, to grant the privilege to towns, or parishes, to send representatives to sit-in the general assembly, do not sufficiently prove, or make out, such right, most of them being cases, where such right was granted by his majesty’s charter, and confirmed by act of the assembly, assented to by the governor and council;, and any modern instance of the assembly alone, taking on. Digitized by knOOQle Constltuiiom.'] Eminent Lawyers. 875 themselves to grant such privilege, appearing to me an high encroachment on his majesty’s prerogative, and tending manifestly to vest the whole government of the province in the general court, or house of representatives. And, as it is represented in governor Wentworth’s letter, that the five towns, or districts, therein mentioned, pay near one-fifth part of the provincial tax, it seems to me, that the said governor acted properly, in directing the said towns to elect and send representatives to the general assembly 5 and, that the assembly have acted arbitrarily, and illegally, in excluding such members, before they proceeded to the choice of a speaker. But, in order that no doubt may remain, concerning the right of the said towns to send such representatives, and as it may hereafter be necessary to empower other towns to do the like, pursuant to the 38th article of the said Mr. Wentworth’s instructions, for the settling new townships, who are to have and enjoy all the immunities and privileges, as do of right belong to any other parish, or township, within the said province, I apprehend it may be expedient for his majesty, in case it shall be bis royal pleasure so to do, to make some new establishment, concerning such elections, which, I conceive, may be done by sending instructions to the governor of the said province, thereby empowering the said towns, and districts, and also any other new townships to be settled within the said pro-t 2 . Digitized by GooQle 276 Opinion* of {Of the Colonial. vince, pursuant to the aforesaid article, under such restrictions as his majesty, in his royal wisdom, shall think fit, to choose and send representatives to sit in the said assembly, or general court, and directing the said governor to issue proper writs, and precepts, for that purpose, which instruction?, I am of opinion, his majesty,, in case he shall so think fit, may accordingly send to the said governor, lawfully, and consistently, with the constitution of the said province. July 1, 1746. Filan. Fans. (5.) The opinion qf the attorney and solicitor* general, Ryder, and Murray, on the same point. Case.—On the 28th of November,, 1746, an act was passed in his majesty’s,province of North Carolina, intitled, “ an act for the better ascertaining the. number of members to be chosen for the several counties within this province, to sit and vote in general assembly, and for establishing a more equal representative of all his majesty’s subjects, in the house of burgesses.” . ♦The preamble of this law sets, forth, that the inhabitants of several of the porthern counties had. assumed, to themselves the privilege of choosing five persons to represent them in general assembly, without any pretence for such, claim, white those of the southern and western counties, who, are more numerous, and contribute much more to. the; ’ general tmr, were represented only by. two mem* bgrs,, which irregularity had been? attended with. Digitized by knOOQle Constitutions:] Eminent Lawyers. 277 great inconvenience; and therefore directs, that every county, already erected, or to be erected, shall, for the future, choose two representatives to sit in general assembly, and that fourteen members shall Constitute a quorum of the assembly. This act having been transmitted to the lords commissioners for trade and plantations, by Mr. Johnston, late governor of this province, a petition was soon after presented to the king, on behalf of the inhabitants of the northern precincts or counties of Chowan, Perquimans, Pasquotank, Currituck, Berty, and Tyrrell, complaining of the said governor, of having passed the said act, in an illegal, improper way, and praying to be reinstated in their just rights and privileges. This petition having been referred, by his majesty, to the lords of the committee of council, was, by their lordships, referred to the board of trade, to consider thereof, and report their opinion upon it. Upon a hearing, before the lords commissioners for trade and plantations, of the petitioners, in consequence of the said reference, and it appearing, that they were not able to prove the allegations of their petition, for want of evidence, their lordships made a report to the lords of the committee of council, and submitted, whether it would not be proper, that orders should be given to admit the petitioners to examine witnesses in the province, ih support of the petition, as also to allow the like liberty to the governor, to examine witnesses on Digitized by UooQle 278 Opinions of [Of the Colonial his part, and to direct him to return his answer to the complaints contained in the said petition, and to transmit copies of the minutes of the general assembly, and of such other papers as might be necessary, for his majesty’s full information in this affair. In consequence of this report, the lords of the committee of council were pleased to direct, “ that a copy of the said petition of complaint should be transmitted to Gabriel Johnston, esq. governor of the said province, requiring him to return his answer thereunto, in writing, with all convenient speed; and that the complainants, or their agents, should be at liberty to take copies of all records, in any of the public offices, in the said province, touching the matters complained of, as the said complainants, or their agents, should think, necessary, to support the said petition of complaint; and that the same should be delivered to the complainants, or their agents, signed and authenticated, in the usual manner, under the seal of the province, upon paying the usual fees for the same; and that free liberty should be also given to all such persons as the said complainants, or their agents, should name, as also to all such persons as the said governor should name, to make affidavits before the chief justice, and judge, of the court of admiralty of the said province, or either of them, of what they knew touching the premises, particularly, as to the practice of the said province, with Digitized by knOOQle Constitutions.] Eminent Lawyers. 279 regard to a majority of the assembly being present, before any business could be proceeded upon; and likewise, with regard to the number of representatives, sent by each of the northern counties to the general assembly, from the year 1690, to the year 1746; and that such chief justice, or judge, of the admiralty court, or either of them, should summon before him or them, such persons, as the complainants, or their agents, should name, as likewise such as the said governor should name, and take their affidavits, and examine them upon such interrogatories, as should be exhibited for that purpose, which the said governor was to signify to the said chief justice, and judge, of the admiralty court, as soon as might be; and that the complainants, or their agents, should deliver unto the said governor, copies of such affidavits, or depositions, as should be made or taken in this matter, on their part; as also, that the said governor should deliver unto the said complainants, or their agents, copies of his answer, and of such affidavits, or depositions, as should have been likewise made on his part, within the space of three months after the receipt of the said order; as also, that within thirty days after receiving each other’s proofs, the said governor should, in like manner, exchange with the said complainants, or 'their agents, the replies that should be made by affidavits, or depositions, be. fore they were transmitted, and that the whole matter should be returned under the seal of the said Digitized by CjOOQle 580 Opinions qf [Of the Colonial province, within the space of six months, from the time that the said order should be served upon the said governor of the province of North Carolina; and that the said governor should transmit the minutes of the general assembly of the said province, in November, 1746, with the names of such members as were present at their first meeting, the names of such as were sworn in afterwards, and the whole- number present during the continuance of that session, and also attested copies of some of the writs, issued for calling assemblies, antecedent to the year 1736, if the same form had been constantly observed, and if there had been any variation in the form of those writs, then to send copies of such as had so varied, and also copies of the returns of such writs, together with a copy of the order of the palatine’s court, in the year 16^6, directing five members to be chosen for the northern counties, and that the same should be properly authenticated, under the seal of the said province, and transmitted, at the same time, with the aforementioned proofs and depositions; whereof the said governor of North Carolina, the chief justice, and. judge of the admiralty court, and all others, whom it might concern, were to take notice, and govern themselves accordingly,” In consequence of this order, the papers and other evidence, thereby required to be transmitted, were laid before the lords of the committee of conn? cil? who referred them to the lords commissioners Digitized by GooQle Constitutions.] Eminent Lawyers. 281 for trade and plantations, with directions to pro* ceed in the examination of this affair, and make a further report thereupon. On the doth of April, 1750, their lordships re* ferred the said act to his majesty’s attorney and solicitor-general, together with a copy of an order of the lords of the committee of council, referring to their lordships the petition and representation of the inhabitants of the northern counties against the same, and all the papers and evidence transmitted, as well in support of the said petition, as of the proceedings of the governor, and council, and assembly, in passing the said law, and desired their opinion, whether it might be proper, consistently with the just rights of the inhabitants, and the constitution of the said province, to be confirmed by his majesty. On the 1st of December, 1750, his majesty’s attorney and solicitor-general reported, “ that they had considered the said act, and had heard council for and against the same: that, although the governor of North Carolina might certainly prorogue the assembly to meet at such place and time as he should see proper; and, although it had not been made out sufficiently to their satisfaction, that the presence of a majority of the whole assembly was absolutely necessary to the doing any business, as alleged by the petitioners against the said act: yet the act appeared to have been passed by management, precipitation, and surprise, when very few Digitized by GooQle 282 Opinions^ (Of the Colonial members were present; and, that it is of such a nature and tendency, and has such effect and operation, that the governor, by his instructions, ought not to have assented to it, though it had passed deliberately in a full assembly; and that they were of opinion, that the said act is not pro* per to be confirmed.” The points, upon which the legality, or illegality, the propriety or impropriety, of this act depend, are: 1. Hie right which the inhabitants of the six northern counties claim of sending five representatives, each, to the general assembly; 2. The necessity of a majority to constitute a quorum of the assembly j and, 3. The manner in which the act in question was passed. In order to judge of the two first of these points, it will be necessary to revert to that period, when first an assembly was constituted, in this colony, and to state such regulations as have, from time to time, been made, with respect thereto, and by what authority the several places, which have sent members to the assembly, have been empowered so to do. In 1663, soon after the grant, made by king Charles the Second, of Carolina to the lords proprietors, they, by a commission under their bands and seals, erected all that part of the grant, which lay to the north-east of Chowan River, into a separate and distinct county, by the name of Albemarle county. Digitized by Google Constitutions.] Eminent Lawyers. 28$ In 1667, the proprietors, appointed Samuel Stephens, esq. to be their governor of Albemarle county, with a power of nominating twelve persons to be his council, and to call an assembly of twelve persons, to be chosen from among the freeholders, until the county should be divided into parishes, districts, or divisions, and then each division, district, or parish, was to send two representatives, who, with the governor, and council, were to form a general assembly. In 1669, the proprietors of Carolina formed a model of government, for the better ordering and ruling the province, commonly known, by the name of the fundamental constitutions of Carolina. By these constitutions it was directed, that a parliament should be held once in every two years, to consist of the proprietors, or their deputies, the landgraves and cassiques, and one freeholder, out of every precinct. These constitutions, however, were never received, or acknowledged, by the people; and, in 1693, were laid aside by the proprietors them-jsejves. The proprietors again, in 1679, framed a new set of fundamental constitutions, with some little variation, as to the succession of officers, and these were sent to the governors of the several districts, in Carolina, which were then three, viz. Albemarle, Craven, and Clarendon. ■ With these fundamental constitutions, the go- . gitized by knOOQle 284 Opinions of [tytk Colonial vernor of Albemarle county had instructions to issue writs to the four precincts of that county, requiring them to elect each five freeholders, to be their representatives in assembly, who were to govern themselves, according to the rules laid down in the fundamental constitutions. In 1691, colonel, Ludwell was appointed governor of all Carolina, with instructions, from the proprietors, to call a general assembly, to consist of twenty members, viz. For Albemarle county . . .5 For Berkeley county . . . 5 . For Colleton county . . .5 For Craven county . . .5 20 And when any new county was erected, and should make it appear, that there were forty freeholders, inhabitants of it, to have a privilege of sending fonr members to the assembly, and then the whole to be reduced to four, for each county. The said governor was further directed, by an additional instruction, to appoint a deputy-governor of North Carolina, if he thought proper; and, if lie should find it impracticable for Albemarle county to send delegates to the general assembly, to direct Berkeley, and Colleton, to send seven each, and Craven six. The same powers, and directions, given to colonel Ludwell, were given, by the proprietors, to Mr, Digitized by I Conrti^zon^.J Eminent Laney ers. 285 Smithy and Mr. Archdale, his successors, in the government of Carolina, in 1693, and 1694, the latter of whom, at a palatine’s court, holden in 1696, ordered writs to be issued out to the several precincts of the county of Albemarle, for electing five burgesses for each precinct; and the precinct of Pamptico, without the limits of Albemarle, to the southward, in- the county of Archdale, was erected into a county, by the name of Bath, and empowered to send two members to the assembly. In 1705, Bath county was, by an order of a council of the proprietors* deputies, divided into three precincts, by the names of Pamptico, Wickham^ and Archdale, each of which were, by the said order, empowered to send two members to the assembly. Some time after this, the particular time not appearing, the three aforementioned counties were, by the succeeding governors, appointed by the proprietors; into four counties, by the name of Beaufort, Hyde, Craven, and Carteret, each of which sent two members to the assembly.; and, in 1715, two towns were erected, in the southern district, by the name of Bath Town,, and Edenton, the first of which was empowered, by an act of the legislature, to send one member to the assembly. In the same year, an act was passed, in North Carolina, intitled “ an act relating to the biennial, and other assemblies, which directed, that each precinct, in Albemarle county, viz. Chowan, Per- Digitized by GooQle «80 Opinions of [Of the Colonia quimans, Pasquotank, and Currituck, should send five members to the assembly, and every precinct, in every other county, or counties, then erected, or thereafter to be erected, to send two; but this act was repealed, by his majesty’s order in council, dated the 21st day of July, 1737. In 1722, a new precinct was, by an act of assembly, erected out of the county of Albemarle, called Berty precinct, and empowered to send five members to the assembly, as was Tyrrell precinct, in the year 1729. In 1729, the crown purchased the sovereignty of both Carolinas, from the proprietors, and also seven-eighths of the property of the lands, which purchase was confirmed, by act of parliament, and, in consequence thereof, his majesty appointed a governor of North Carolina, with a power of calling assemblies, according to the laws, and usage, of the said province. It appears, from the journal of the first assembly, called after the crown’s purchase, that the assembly consisted of forty-one members, viz. For Chowan precinct . . .5 Perquimans . . . .5 Pasquotank . Currituck . . Berty . . . Tyrrell . . . . 5 . . 5 . . 5 • .5 Carried forward 30 Digitized by knOOQle Conttitulions.] Eminent Lawyers. 287 Brought forward 30 Beaufort . . . . .2 Hyde ...... 2 Craven . . . . .2 Carteret . . . . .2 Edenton.....................1 Bath Town . . . .1 Newbern.....................1 41 During the administration of governor Burring, ton, the first governor, the following precincts were erected in the county of Bath, by the governor’s order, viz. New Hanover, Edgecumbe, Bladen, and Onslow, the two last of which were confirmed, by act of assembly, 1734. In 1733, Gabriel Johnston, esq. was appointed governor of this province; and the first assembly which met after his arrival, was composed of forty- nine members, viz. For Chowan .... 5 Perquimans .... 5 Currituck.......................5 Pasquotank . . . . 5 Berty . . . . . 5 Tyrrell ; .... 5 Beaufort . . . . . 2 Hyde ...... 2 Carried forward 34 Digitized by Google m Opinions of [Of the Colonial Brought forward 34 Craven . - . ■ . . . Carteret ... . . Edgecumbe .... New Hanover . . . . Bladen . . ■ . . . Onslow . . . . « Edenton . . . . . Bath Town .... Newbern . • . * . . 2 2 2 2 2 2 1 1 1 49 la 1736,< the writs issued by the governor, for calling assemblies, which*, before that time, directed the northern- counties to send each five members, were altered, and they were directed1 te send net any particular number, but representatives, only, in general words. During the administration of governor Johnston, part of Berty county was, by an* act of assembly, erected into a separate county, by the name of Northampton, and empowered to send two representatives to the assembly; and the same act directed, that Berty county, for the future, shall send but three; and, at the same time, Edgeeumbe county, which had been erected, by governor Bur-rington, and had sent two members to-the assembly, was confirmed, in that privilege, by act of assembly. Jn l739, the town of Wilmington was erected Digitized by LjOOQle Constitutions.'] Eminent Lawyers, 280 by act, and empowered to send one representative to the assembly; and, 1746, a little before the passing of the act in question, two other counties were erected, by act of assembly, in the southern district, called Granville and Johnson, and empowered to send each two representatives. From the foregoing state, therefore, it appears, that at the time of passing this act, the province was divided into seventeen counties and four towns; that four of these counties, in the county of Albemarle, viz. Chowan, Perquimans, Pasquotank, and Currituck, had, from the first establishment of an assembly, chosen each five representatives, and the other two in the same county, viz. Berty and Tyrrell, had been empowered by the acts, by which they were erected, to send the like number, and did actually send the like number, until Berty county was limited to three by the act which separated Northampton from it, and that the other eleven counties, in the southern district, commonly called Bath county, had never sent more than two each. ’ Since the passing this act, two other counties have been erected by act of assembly, in the southern district, by the names of Dupplin and Anson. As to the second point, viz. the necessity of a majority to constitute a quorum of the assembly, it appears by the charter- granted to the first proprietors of Carolina, in 1663, that they had a u Digitized by knOOQle 290 . Opinjonsof [Ofdhe.Coloniab power of making, laws, wilh the advice, assent, and. approbation) of the freemenof the said pro? vince, or of the grqatpr part of them, or. of their delegates or deputies;. and ip a declaration soon, after published by the proprietors, setting forth, the encouragements to bp allowed to persons who should settle ip that province, they declare that they will empower the, major part of the freeholdr ers, or their deputies, or. assemblymen^ to be by them chosen out of themselves, to make their own laws. By the instruction, given to governor Stephens, in 1667, to call an assembly, it was declared, that they shoultLhave a power of ascertaining their own quorum, provided it was not less titan one«third. of the whole number. By the fundamental constitutions, it is declared, that the quorum of the parliament shall be one-half of; the number. By the instruction gjven to colonel Ludwell, and tp his successors in the government, of Messrs. Smith and Archdale^ concerning assemblies,, they are- empowered, with, the advice and consent of the deputies, of the proprietors, the landgraves and1 cassiqpegs, and the delegates of the freemen,, or the major part of them, to make and ordain laws, statuses, and ordinances. . It does not appear, from any boo^s or papers in. the plantation, office, what was the>: regulation or usage, with respect.to the quorum o£the-asse»d>ly» Digitized by VnOO^ / ^ 'Constitution^.] Eminent Lawyers. 3?$1 frorri the year, 1694 to the yeat 171'5, when the biennial law Was passed’, by Which’ it Was enacted, that a qborum of the house of burgesses should' not be less than one-half. It is to be presumed that this rule was observed while the act remained in force, and it does appear that at the first assembly called by Mr. Bifiringtort, a majority of the members Were' present the first day df the session ; and that’ on the 1st day of January, 1734, the first day of the meeting1 of the first’ assembly called by Mr. Johnstonj the succeeding governor, he adjourned them, off account of there riot being a majority preserif. Asto the third point, viz. the riiariner of prising tile law, it appears by the jourrials of the asserriftly, that the assembly by wliibh this law Was passed met first at Newburnj ori the 12th dhy of Juhe, 1746, and' were prorogued1 to the' 21 st' day of No-ve'mbdr’, to be'then held at Wiltnirigtori'; that they met at Wilmington' on the said day, fourteen members being present, when the bill riow in ques* tidriWas moved for, arid brought in and-read, arid Ordered to be sent to the codhcif the next day; that1 off the 24th it was received back, arid read a second time, and that it was read*a third time, and passed the riext day. This method of proceeding iri'passing this act, is represerited by the northern counties'as a desigh of the goverhmerit to ensnare arid' entrap them1: the town of Wilmington, to which' the assembly u 2 . , ed by knOOQle 292 Opinions of {Of the Colonial was prorogued, being two hundred miles from their habitations, and where it was not possible for them to attend, and that the fourteen members present were all of the southern district, as well as the council, which advised the governor to take this step. The governor of the said province, in order to show the propriety and necessity of this law, and to justify his passing it, acquaints the lords commissioners for trade and plantations, in a letter dated the 9th of March, 1746, that the northern counties having thirty-one votes out of fifty-four, and being generally united under the conduct of a few designing men, who found their account in keeping public affairs in confusion, they had made the governor and council, and the remaining members, of no weight in that legislature; for they could not so much as meet, unless they thought fit to be present, and after they were met, if they did not like any bill, they withdrew privately, and then the majority of burgesses being absent, no more business could be done, so that the very being of assemblies depended on their whim and humour, and not on the king’s writ and go> vernor’s proclamation and prorogation: that this was no imaginary consequence, but a real effect, which had happened more than once within four years, when he had waited with the council for three or four weeks, and been obliged to separate Without doing any one thing; that when he pro- Digitized by GooQle Constitutions.'} Eminent Lawyers. #93 rogued the assembly in June, 1746, to the middle of November following, then to meet at Wilmington, they entered into a formal agreement not to attend, and to engage as many of the other members as they could influence to stay at home. Quaere.—Have all the six counties, viz. Chowan, Perquimans, Pasquotank, Currituck, Berty, and Tyrrell, or any of them, or which of them, a right to elect five representatives, to serve in the general assembly ? Though the ease seems very carefully and accurately stated, we are afraid of giving an official opinion upon so important rights, where a question has arisen, upon which the parties can have an opportunity to be heard. In general, as the four counties first named from the first establishment of an assembly are said to have chosen each five representatives, and the two counties last named were empowered by the acts of assembly, by which they were created, to send each the like number, and Berty county, by a subsequent act, was limited to three, we are at a loss to find out upon what foundation an objection is made to Berty county sending three, and the rest five representatives each. Quare.—Is a majority of the representatives necessary to constitute a quorum of the assembly? ' It does not sufficiently appear to us, that a ma- Digitized by LjOOQle 294 Opinions of [Of the Colonial jprity pf the representatives is necessary tp constitute a quorum of the assembly; such a constitution js very extraordinary, and liable to great ip-convenience. Queere.—Was the law in .question legally apd properly passed ? Upon this question we see np reason tp vary the opinion we gave by our report pf |he 1st pf December, 17^0, above referred to. Quare.—If it should be thought’ proper to re* peal the law, can the crown, by virtue of its own prerogative, make any alteration with respect to the places which send representatives tp the assem* bly, or direct what number of representatives sack place should send ? though it may not be advisable for the crown to impeach rights heretofore granted and enjoyed, we think, as the province grows more peopled and cultivated, the king may erect tpwns and counties, apd give them the. privilege of phasing represents tiy.es.: and to preserve the king’s prerogative, we think it ought rather to be done, ip tips way, than by pcf of assembly. Since this law was passed, assemblies have met and passed many laws fpr erecting courts, of judicature and justice, and many proceedings have been had, and judgments given, in such counts. Qinere.—lf the said law should be repeated# will the acts of assemblies of the said province, held, in consequence of the Said act, (whiph acts Digitized by knOOQle VoMstitufiauS Eminent Latoyers. 295 were subsequent to the passing of the said act of 1746, but previous to the repeal of it,) become void and illegal by such repeal ? We apprehend the acts of the assembly are good till repealed, and, consequently, void only from notification of the repeal; but the particular constitution of this province is not Stated as to the force of their laws, till approved or disapproved by the king. Qujfre.^-If the said acts should, by the repeal of the act in 1746, be illegal and void ab initio, what method will it be proper for the crown to take to indemnify such persons, who have acted under the powers and authorities of such acts ? This falls Within the answer to the former question* July ^, \iS3. ■ D. Ryder. W. Murray. (6.) Tke opinion of the attorney and solicitorgeneral, Murray, and Lloyd, on the privileges of the Jamaica assembly. ' To the right honorable the lords commissioners for trade and plantations. May it please yottr lordships. Pursuant to your lordships’ desire, signified to us by Mr. PoWnall, in his letter of the 15th instant, setting forth, thatyouf fordships having lately received a letter from Mr. Knowles, governor of the island of Jamaica, in which he acquaints your lordships with his having dissolved the assembly Digitized by Google 296 Opinions of [Of the Colonial there, for calling in question his majesty’s right of issuing writs for electing members to sit ip the assembly, without waiting for a message first from them 5 and inclosing to us an extract of the said letter, together with a copy of the resolution of the assembly, upon which that dissolution was founded, (which extract and copy are herewith returned) ; and desiringour opinion whether the assembly were warranted,in coming to that resolution, and whether it be consistent with his majesty’s rightsand prerogative: we have considered thereof,and do not think ourselves sufficiently informed to give an opinion .upon the question so generally stated, because it depends upon the constitution of the assembly of Jamaica, and the usage, whether, whilst the assembly is sitting, all vacancies should first be signified by themselves to the governor; and yet the case must frequently have happened. Nothing is transmitted to us relative to the particular constitution or usage in Jamaica upon this point, and there are no parties to whom we could send for information. . What the assembly claims seems analogous to the law and practice here; but it does not from thence necessarily follow that it is, or ought to be, the law there; that must depend upon their own constitution and usage, which, without further light, we cannot venture to give an opinion upon. April 29, 1755. . W. Murray. , Rich. Lloyd. Digitized by knOOQle Constitution^ Eminent Lawyers. 297 (7.) The opinion of the same lawyers, whether a person chosen into the assembly, had a right to sit, he having been convicted of a crime in England. To the right hon. the lords commissioners for trade and plantations. May it please your lordships. Pursuant to your lordships’ desire, signified to us by Mr. Pownall, in his letter of the 25th instant, setting forth that your lordships had received a letter from Mr. Knowles, governor of Jamaica, dated the 25th of January last, acquainting your lordships with his having dissolved the assembly of that island a second time, and containing his reasons for such dissolution (a copy of which letter, and the other papers inclosed to us, are herewith returned), desiring our opinion, whether Mr. Dawes, the gentleman mentioned therein, by having been convicted in England’of uttering treasonable expressions against his majesty, and sentenced to enter into recognizance for his good behaviour for seven years, is disqualified, during that term, from being elected into, or sitting in, the assembly of Jamaica, he having taken the oaths to his majesty, and made and subscribed the declaration, and taken and subscribed the oath of abjuration : we have taken thesame into our consideration, and are humbly of opinion, that though the said assembly might, in their discretion, have expelled the said James Dawes, in consequence of the said Digitized by knOOQle 298 Opinions of [Qfthe Colonial judgment, yet that the same was no legal objection to his right, or capacity of sitting. April 29, 1755. W. Murray. Rieu. Lloyd. (8.) The opinion of the attorney and solicitorgeneral, Northey, and Harcourt, how far a representative, absenting himself, may be punished. To the right honorable the lords commissioners for trade and plantations. .May it please your lordships. In humble obedience to her majesty’s commands in council, signified to us by your lordships’ secretary, we have considered what method may be proposed for punishing such members of the assembly of Barbadoes, as wilfully absent themselves from the said assembly, which consist ing .of two and twenty, and fifteen being reputed there to be necessary to be present, eight of them absented themselves voluntarily, and thereby the proceedings of the assembly have been, for a long time, obstructed; and we do humbly report to your lordships, that the assembly in Barbadoes begun, and hath been continued, by virtue of the commissions granted, from time to time, to the governors of that island by her majesty's predecessors, and by her majesty, whereby the governor is enabled, by the advice of her majesty's council there, to summon and call general assemblies of the freeholders and planters there, and, with the .advice and consent of the said council and assem- Digitized by Google Constitutieus.y Eminent Lawyers. €99 bly, pr the major part of them, to male laws for the public peace, welfare, and good government of that island; and the number of persons of the assembly being two and twenty, twelve, being the majority of them, is sufficient to be present, and the appointing fifteen to be necessary, which was done by an order of the assembly, as we are informed, and not by order of her majesty or her predecessors, or by any act of the assembly confirmed by her majesty, or her royal predecessors, is irregular, and could not alter the quorum appointed by her majesty’s commission. As to the case of the absentees, we are humbly of opinion, that they being chosen, and having accepted of the places, and acting in the assembly, and wilfully absenting themselves without any just occasion, to the total obstruction of all business, they are guilty of an high misdemeanor, in the execution of the trust in them reposed, and contempt of her majesty’s royal authority; and there being no power expressly lodged by her majesty in the assembly to punish such offences, they may be proceeded against, in her majesty’s ordinary courts of justice there, and punished by fine and imprisonment. But whether a prosecution of an assemblyman, in the courts of justice of that island, without any application from the assembly to her majesty, or her governor there, for that purpose, may not tend to her majesty’s disservice, by creating an uneasi- Digitized by Google 300 Opinions of . IQ/the Colonial ness in. the present and ail future assemblies, and occasion an unwillingness to serve therein, is most humbly submitted to her majesty. February 1, 1704-5. Edw. Northey. - Sam. Harcourt. Sir. . Some members of the late assembly of Barbadoes having applied to me on behalf of themselves and the rest of the absenting members, and represented that the matter of fact, stated in the report lately made by Mr. Solicitor and myself, hath been misrepresented, for that the said assembly hath power to punish their own members, and, therefore, they desire an opportunity to make out. the same: I am content, that the said report may be reviewed, and altered, as justice shall require, which I desire you to communicate to the lords. February 9,1704. Edw. Northey. . (9. ) The opinion, of the attorney-general De Grey, whether the assembly of South Carolina could grant money to the Bill of Rights Society. Questions arising out of the foregoing state of facts, and upon which questions the opinion of the attorney-general is desired, are: Whether, • under the circumstances, above mentioned, the commons house of the assembly of South Carolina can, or ever could, legally, by an order of that house alone, not concurred in by the other two branches of the legislature, appropriate to specific public, purposes, any sum or sums of Digitized by Google Constitutions.') , Eminent Lawyers. 301 money for such public purposes of the colony, at the said commons house of general assembly might think fit ? If this question is answered in the affirmative, then question whether, under the above-mentioned circumstances, the foregoing order of the said commons house of assembly, on the 8th of December last, for the purposes therein mentioned, and thereby intended, is warranted by law and the constitution? If not, what remedy, in either of the cases stated, can be legally and constitutionally applied, in a matter of so great importance to his majesty’s government, and the future well-being and security of the colony of South Carolina ? 1st. I am of opinion, that the house of assembly of South Carolina cannot, by the constitution of that colony, without the concurrence of the governor and council, legally direct the treasurer of the colony to issue out of the balance, or surplus of funds arising from taxes granted to the king, and appropriated by the legislature of the colony to certain public services, any sums of money for such other public purposes of the colony, -as the house of assembly shall alone think fit. Such a power would, as I conceive, be contradictory to the first and fourth articles of the commission and instruct tions, repugnant to the nature of the grant by. which the surplus must remain disposable by the same authority, which' raised it, and cannot, I Digitized by GOOQle 302 Opinions of tty the Colonial think, be warranted by the modern practice of a few years, irregularly introduced and improvidently acquiesced in. 2d. I think the order of the assembly, of the 8th of December last, is not to be supported in point of law; not only as they cannot, in my opinion, legally issue the public treasure, by their sole authority, but as the sum is directed to be paid out of any money in the treasury, without regarding the payment of the appropriations mentioned in the act of assembly; and as it is to be applied not to the particular service of the colony, and‘the support of the government thereof, but to be remitted to Great Britain, for the vague and indefinite purpose of supporting the rights and'liberties of Great Britain and America, to be ascertained by the arbitrary pleasure of seven particular persons; and without any immediate reference to the service of that colony. 3d. If the order of the payment of the money is not warranted by law, the payment cannot be legal, and the treasurer has issued the money, without authority; but it would be hard, after tile late afcquiescence, in the orders of the assembly, to make the treasurer liable to the consequences of a Wrong payment. What preventive measures for the future may be most conducive to the service of the colony, and of hrs majesty’s government, and to protect Digitized by UOOQle Cunstitutions.'i Eminent Lawyers., 303 the subject, from the repetition of such exactions, whether by the parliament here, or. by instructions to the governor, must be submitted, to the wisdom of his majesty's servants. February 13, 1770; Wm. De Grey. . (10.) Several opinions on the act of the Maryland assembly, “Jar the establishment of religious worships according to the church of England.*’ The following facts may be premised, as the case: King William deceased on the 8th of Marche, 1701-2 ; the assembly, which was thereafter called in the usual manner, met on the 16th of the same month, and during its sitting passed the act in question, without the possibility of knowing, that such an event had taken place. Governor Seymour, the. successor of governor Blackstone,, who summoned the assembly, upon his arrival, on the 11 th of .April, Yim, found the, same assembly existing, that had: been'called, by his predecessor, in the name of king William: so that there were, three several, sessions of assembly held, qfter the demise qf king William, to wit, in June VJQ1^ in Ocioher, 1703, and w April, 17Qk First. The opinion of Mn Hollyday, an eminent lawyer of Maryland, on, this subject. Ki ng. William died the -8th day of 'March, irr the year of our Lord* 1701* On the 16th. day of the same month, an assembly met, under governor Biakiston, and continued until the 25th of the said month; in whichwasmade the act; for the esta> hlishmcnt of religious worship, in this province; ac- Digitized by knOOQle 304 Opinions of [Of the Colonial cording to the church of England, and for the maintenance of ministers. Two questions concerning this act have lately been stirred, whether the act be in force; if it be, whether the sheriffs can execute for the forty pounds of tobacco per poll, established by the act,for the maintenance of ministers. The objection to the validity of the act, I take . to be founded on the fact of the king’s demise, whereby it is supposed, that the assembly was dissolved, and therefore the act made by persons having no legislative powers. I am of opinion, that the aforesaid act is in force. If the objection drawn from the demise of the king can be obviated, and it can be shewn, that the act had the validity of the law, when it was made, I conceive it will follow, that it is still in force; there is no limitation of its continuance, in point of time, it is therefore a perpetual law, and I do not know, that it has been repealed, by any subsequent act. At the time of the king’s death, his governor here, was acting under bis commission, in conse-' quence of which, he was invested with the royal authority, bad power to call, prorogue- and dissolve assemblies, assent to laws, and to exercise the other functions of the royal capacity, within this province; and I apprehend, that so long as that commission remaineth in force, all acts done by virtue of the powers, derived from its words, are good and valid. I have no doubt, but that by the demise of the king, all commissions granted by him during Digitized by GOOQle Constitutions.} Eminent Lawyers. 305 pleasure, would have determined, unless provided for. But. by an act of parliament made in the seventh year of his reign, cap. 97, it was, amongst other things, enacted, that no commission, either civil or military, should cease, determine, or be void, by the death or demise of his said majesty, or of any of bls heirs or successors, kings or queens of England ; but that every such commission ' should be continued, and remain in full force, for the space of six months, next after such death or demise, unless, in the mean time, superseded by the next immediate successor. And, by an act made in the first yeax of queen Anne/ by the parliament, that was sitting when the king died, and in that same session, it was enacted, that all and singular the provisions, clauses, matters, or things whatever, contained in the above recited part of the act, of 7 W. HL. should extend, and he construed to extend, to the kingdom of Ireland, to tire islands of Jersey and; Guernsey,, and to alt his majesty’s. dominions in America,, and elsewhere. By these provisions, the, governor’s commission was in full force, at thetime of making the act in question, it, did not cease, or determine, by the demise of the king,; fox, if the general words of the. act of 7 W. HI. did not extend to commissions in the plantations, they were undoubtedly extended to them by the act of queen Anne,, which, by express provision, was to have its operation, and commencement, on die eighth day of March, on which day x Digitized by GooQle 306 Opinions of (Of the Colonia! the king died, so that there was no interval of time between the death of the king, and the making of the act here, in which the governor’s commission was not in full force. And I am of the opinion, it will follow from hence, as a necessary consequence, that, by the demise of the king, the assembly of this province was not dissolved, for the reason why, by the death of a king, the parliament was dissolved, (until the case was provided for by the statute,) was, that he being considered in law as thehead of the parliament, that failing, the whole body was extinct. But the reason does not subsist in this case, for the politic capacity of the king, in which only he can be said to be the head of the parliament, was still residing in his governor here, as fully as it had been, at any time, during his life; the governor’s commission was from the king, that commission was in full force, he was invested with all the powers derived from it originally, amongst which, that of legislation, calling assemblies, and assenting to laws, was one. The crown; whilst the government was in its hands, and the proprietaries, in the time of their administration, have exercised a power of dissenting to laws passed here by their governors; but I have never understood, that the assent of the crown, or proprietary, was thought necessary to the validity of an act of assembly, to which the governor had given his assent, such act having, to every purpose, the force, and obligation of a law, unless Digitized by GOOQle Constitutions.'] Eminent Lawyers. 307 ' dissented to by the crown, or proprietary; and; I ■ think, that this being the case, it may fairly be in* ferred, that the governor here, acting under a commission from the crown, stood in the same relation -to the other branches of our legislature, as the king does to the other branches of the parliament; that he must be considered as the head of the assembly, in the same light as the king is of the parliament ,* and that,' therefore, the legislature of this province remained complete, and perfect, notwithstanding the demise of the king: nor will it follow, from this reasoning, that, by the death of the governor, the assembly would be dissolved, because the powers of a governor, though perfect and complete, whilst they continue, are but delegated, and derived from-a superior, to whom they result immediately on the death of the governor. I have heard of an objection drawn from the style of this act, “ it is enacted by the king’s most excellent majesty, &c.” but I think this objection is of little weight: the king is here named in his royal and politic capacity, which, at the time of making the act, it was to this purpose, residing in his governor, who then enjoyed and exercised the functions of it in this province; and the personal assent of the king, was hot necessary to the act. Further, this act has always been allowed and received for a law: the 401bs. of tobacco per poll has always been collected by virtue of it; and parish assessments, for a long time, made under it; the being x 2 Digitized by knOOQle 308 Opinions of lOftlu Cokmai and authority of the vestries, for seventy years past, have been derived from it; many duties are required of these by subsequent acts; and some share of our civil polity depends upon the existence of it; it was expressly excepted out of the general repeal in 1704, and has been referred to, and made the ground-work of many later acts of assembly. This long uninterrupted allowance, and frequent recognition of the validity of it, leave no room to doubt of the uniform sense of the people, and opinion of the legislature, with respect to its existence, and furnishes a strong argument against questioning the force of it, at this time of day. As to the second question: By the act of 1709, sect. 3, for the encouragement of faithful and able ministers, labouring in the work of the gospel, to come and reside in this province; it is enacted, that a tax, or assessment, of 401bs. of tobacco per poll, be yearly, and every year successively, levied upon every person, &c. and paid to the minister, &c. And the act directs, sect. 6, that, for the better and more effectual collecting of the duty of 401ba of tobacco per poll, and paying the same to the uses intended and appointed by the law, the sheriff of the county shall, and is obliged, to coHeet and gather the said assessment of the several persons within each respective parish, in the same manner; and by the same authority, as the public, and county levies, are collected, and shall pay, &c. It could scarce be imagined, that a minister, who bad a comfortable Digitized by knOOQle Constitutions.] Eminent Lawyers. W establishment, in England, would be induced to come over to this province, for the sake of the provision made by this act. Those who should come, it might be expected, would be such, as, from their circumstances, must depend on their salary, for the support of themselves, and their families. Hence a necessity, that this should be annually collected and paid, and that some power should be placed in the hands of the sheriff, who was to collect and gather the 4Olbs» of tobacco per poll, by which he might, in a speedy and summary way, enforce the payment of it; and I have no doubt, but that this was done, and that the sheriffs had power to execute for it. The act does not, indeed, in express words, give a power; but the sheriff is obliged to collect and gather, in the same manner, and by the same authority, as public and county levies were already collected. The words are in the same manner j and by the authority, have a plain reference to the mode of collecting, i. e. compelling the pay. ment, then in use, and practice, which was clearly, by way of execution, or to some law then in being, which pointed out a mode of compelling payment, or to both. I have met with no law, which does originally, and expressly, give a power of executing for public and county levies, or point out any mode of compelling payment. If such an one can be found to have been existing, when the act of 1702 was made, it might, perhaps, put an end to this question. If there was no such law in being, Digitized by GooQle 310 Opinions of [Ofthe Colonial the mode referred to must be the usage, and practice of the time. . The act of 1699, of directions for the sheriffs office, which was a perpetual law, and, I apprehend, continued in force until it was re-enacted 1704, does plainly prove the mode, then in use and practice, to have been by execution. It restrains the sheriffs from seizing tobacco unstripped, or marked for merchants, or others, for any cause, except levies, and gives him a power to break locks, in order to seize tobacco, for public levies. This law was again re-enacted, so far as concerns the present question, with some addition in 1715, cap. 46, a perpetual law now in force, by which the sheriffs are restrained from seizing tobacco unstripped, &c. for any cause, except levies due to the public, county, or parish, or for the 401bs. of tobacco per poll to the minister; and he is impowered to break locks, in order to seize tpbacco for levies, and dues, as aforesaid. In 1699, the law of 1702 not being made, the exception was confined to levies. In 1715, it includes the 401bs. of tobacco per poll to the minister, becaiise that was to be collected, and gathered, in the same manner. And, by sect. 5, of this act, the sheriff shall not levy, by way of execution, any public dues, or officers’ fees, upon the body, goods, or chattels, of any inhabitant, except he has made a demand thereof, at, or before, the 20th day of February. The 401bs. of tobacco per poll is here Digitized . Google Constitutions.} Eminent Lawyers. 311 omitted, and, I conceive, with design, because every man might know, without demand, what he was to pay to the minister. By the act of 1723, cap. 16, fines for breaches of this law are to be levied by the sheriff, by way of execution, as other public dues are to be levied. By the act of 1724, cap. 21, no sheriff shall be allowed any fee, or reward, for executing for any public, or county levies, or any public dues, or officers* fees. This act recites, that several sheriffs, to increase fees to themselves, had executed several persons, for public and county levies, and officers’ fees, and had charged execution fees thereon; and that the power of execution ought not to be used, in oppression of the people, but only to enable the sheriff to collect the public dues, and officers’ fees, with the greater facility. Usage is said to be one of the best expounders of a law: the usage, in this case, is not only proved, by the acts of assembly above referred to, which, at the same time that they evince the fact, shew the sense of the legislature, with respect to the legality of it, but might be appealed for to the experience of every man in the county, who lived and was conversant in business. Before the inspection law of 1747 took place, the sheriffs used to execute body, or goods, as he thought most effectual, for obtaining payment. To draw this matter into a narrow compass, the terms, tax, assessment, levy, as used in the act, convey an idea of something compulsory. The Digitized by GooQle 312 Opinions of [Of the Colonial sheriffs, by the act, are obliged to collect this tax, and to pay it annually. The purposes to which it is applied, required that it should be annually collected, and paid. A compulsory power, therefore, in the hands of the sheriff, was necessary to enable him to discharge this obligation: the law plainly intended to give him a compulsory power. Of what nature was it ? I -conceive, for the reasons assigned, a power to execute body, or goods, as should be most conducive to the end and purposes of the power. dug. f, 1772. James Hollyday. Second. Sketches tfan argument on-this subject, by Mr. Daniel Dulany, one of the ablest lawyers, which America ever produced, after he had retired from the Aar. . Qusere.—Whether the validity -of the act of J 701, may -not be asserted, on the principles of the common law, though the governor’s commission determined on the royal demise, inasmuch as the meeting of the assembly, and passing the act, were agreeable to the commission while in force, and happened before notice of the royal demise ? Defendant in assize pleaded a recovery before commissioners of oyer and terminer of damages, wherein one moiety of the land demanded was on eligH taken into execution, &c. The plaintiff replied, that after the said oommissioB, and before judgment, anothei commission issued, &c. Fish prayed judgment, because the plaintiff did sot Digitized by LjOOQle CoiutiMiaKs.} Eminent Lawyerst 313 allege that the first commissioners had notice beforejudgment of the second commission; because, though the second commission, when executed, has, to some purposes, relation to the date, yet the acts done under the first, before notice, were good. —So adjudged, 34th As. PL 8. Under a commission to examine witnesses, the commissioners began the examination the 28th of March, 1635, the day after king James’s demise, but before notice of it. Agreed, the commission was determined by the royal demise, without any notice; but held that the proceedings before notice were good, and that the witnesses, if perjured, might be punished, because examination before notice of the royal demise was legal. Crow v. Vernon. Cro. Car. 97. in which Lib. Ass. is referred to. An attachment sued out in the time of Car. II. and executed at Exeter three days after his demise, but before notice of it, held to be good.— Burch >o. Maypowder, 1 Vern. 400, in which the case in Cro. is cited. A commission to Algiers to examine witnesses. The plaintiff died before the examination, but the witnesses were examined before notice of his death. Though the suit was abated, yet the examination before notice held to be good. Thompson’s case, 3 P. Wilt 195, in which the case in Cro. is referred to. Whatever effectually determined a commission, Digitized by knOOQle 314 Opinions of fOfthe Colonial on the principles of common law, whether a royal ■demise, a new commission, or death of the party, ■should, on the principle of the objection to the act of 1701, invalidate all acts done under it; but the cases cited prove, that all acts done before notice are valid. When a new governor is appointed in England, it takes some time to convey hither notice of the appointment; and the acts of the old governor, before notice, have always been deemed to be valid. Very inconvenient if not so. Should it be asked, why, then, the statutes of king William and queen Anne? Answer, it takes time, after a royal demise, to settle the proper arrangements of government. The common law only supported all official acts performed before notice, and, therefore, the statutes have preserved and continued all commissions for six months, and thus comprehend as well acts done after as before notice, during that period. Such was the defect of the cointoon law, and such the remedy provided by the statutes. There can be no doubt but the act of 1701 passed with the fullest concurrence and assent of the crown and the two houses. Former bills, on the same subject, had passed in Maryland; but they were defeated by the royal dissent. The . assembly addressed the king, and expected that he would order a bill to be framed for the purpose of a religious establishment, and to be remitted hither for the assent of the two houses. The bill Digitized by knOOQle Constitutions.] Eminent Lawyers. . 315 was accordingly framed, remitted, and assented to in 1701; moreover, after the demise of King William, the act of 1701was transmitted to England, as was the practice when acts passed here. An application was made against it by some dissenters, which not only failed of effect, but was the occasion of the particular confirmation of the pious queen Anne, which was ordered to be published in all the churches. The 12th of Car. II. passed in the convention parliament, which was not dissolved till the 29th of December, 1660. Vid. Pari. Hist. vol. xxiih and what is said in Vent. 15. applies much stronger to this case. There was a precedent royal assent to the act of 1701; parliament and assembly not to be confounded ; local circumstances, as well as other reasons, distinguish them. It is true, there cannot be a royal assent before the meeting of parliament; but it is as true, there cannot be a royal dissent after a session of parliament. To acts of assembly there may be dissent after the session, and why not an assent before ? It is not, except in the case of an act of grace, usual for statutes to originate with the king; but, without doubt, if a bill with the royal assent should be sent to the lords and comomns, and receive their assent also, it would be a perfect law, if even in the form of a charter, as was the case with Magna Charta. That which constitutes law is the concurring assent of all the branches of the legislature, wheresoever it mayhap- Digitized by knOOQle 3l6 Opinions of [Of the Colonial pen to originate, whatever may happen to be the form of it. Vid. Hale,Orig. and Antiq. Park and 8th Co. Bep. Prince’s case. The king cannot be personally present in assembly; the manner must be governed by the nature of the business: he can, therefore, dissent out of assembly; and why not assent ? In most of the acts, which have lately passed in Virginia, the acts do not operate till the royal assent is given: Why, then, if assent or dissent, subsequent to a session, shall be so effectual, may not any assent, before a session, be as effectual ? If there be a restriction in a governor’s commission, with respect to particular acts, and the restriction be not observed, his assent is a nullity: this is in the nature of a precedent, royal dissent. Why, then, should not a precedent, royal assent be effectual ? Sir Philip Yorke and Mr. Lutwyche were clearly of the above opinion, on the point of restriction. The discretion in passing acts of parliament, or not, is a royal incommunicable prerogative; but not so as to acts of assembly. Such discretion may be communicated to a governor. The statute of Henry VIII. relates only to the mere execution of the royal will. The idea of a provincial legislature to be kept up. It is a very slight objection, that the king’s name was used, after his demise; his name was unnecessary, and utile per inutile non vitiatur. The royal name is not used in the acts of New York, or Vir* Digitized by Google Constitutions.} Eminent Lawyers. 317 ginia. What is said of the abatement of the writ of summons, I do not understand. Fungitur officio, when returned, and the qualification performed. .What is said of prorogation and dissolution, is a mere mistake; they may be, and usually are, in the governor’s name. Next consider the statutes. All commissions continued in full force and virtue for six months: continuance and suspension are as opposite as motion and rest. If there was a continuance for six months, there could be no suspension within that time. Full force and virtue. Plenum est, cui nihil addi potest, cui nihil deest secundum modum sua capaci-tatis; but if the governor could not meet the assembly, and pass acts under his commission, there was something wanting, and the commission was not continued in full force: a conclusion directly against the statutes. If the governor had authority to meet the assembly, it was exercisable, vana mum est potentia, qua non in actum venit, 2 Co. 51. The assertion of a power unexercisable, is a contradiction; but it is said the power was exercisable only in the name of the queen. The absurdity is the same, because the capacity to exercise the power is made to depend upon an impossibility, the knowledge of an event unattainable, by any human means. The law expects no mi-Taeles; it is satisfied with human prudence. Casus Digitized by knOOQle 318 . Opinions of [O/the Coloniat fortuitus non est sperandus (expectandus), et nemo tenetur divinare, 4th Co. 27. c. 66. Litt. Rep. 98. The governor, it is said, has no exclusive authority, &c. Exclusive of whom, or what ? I do not understand what is meant by the term. Blackstone quotes from Hale and Bracton. Principium, caput, et finis, not applicable to an American assembly, nor even to parliament at this time.. Julius Crispinus observes, distinguinda sunt tem-pora, mutatata enim hominum conditione, mutate sunt et sanctiones, nam pluvimce regula priscis tem-poribus accommodat, nostris sunt alienee. Queen Anne, on the 11th of March, 1701, met the parliament that was sitting at king William’s demise, under the statute. The lords-justices met the parliament after the death of queen Anne, under the statute. George II. met the parliament that had been summoned by his father. Should there be a dissolution of parliament by effluxion of time, it would be renewed, and meet under the statute. Statutes, accommodated to .the times, have cqn-troled the rule in England: in America, it is not, with any degree of propriety, applicable, where the king is necessarily absent from the assemblies; where what is done in the royal name is, for the most part, done by a deputy; where in the great point of passing laws, discretionary powers are fre- Digitized by Google Constitutions.^ Eminent Lawyers, aig quently intrusted; where, as has been shewn, there can be no defect, on the principles of the common law, in acts of government performed before no-, tice of a royal demise; where the powers of government, for sir months after a royal demise, are by statutes continued in full force, terms which exclude all idea of suspension, cessation, and defect; where those powers are therefore always, during that period, exercisable; where, consequently, the validity of the exercise cannot depend upon an impossible observance. Quando lex ali-quid alicui concedit, concedere videtur et id, sine quo res ipsa valere non potest. Co. Litt. 56. An aiding act, it is said, passed, in Virginia; therefore a similar provision was necessary, in Maryland. A serious answer to this remark would be ridiculous; but I cannot help observing how little care is taken to avoid inconsistency. It is admitted, that process stood in need of an aid, but the Virginia law includes process as well as acts of assembly. That the act of 1751 is relied upon is astonishing. The statutes extend to a royal demise, but a proprietor’s death was no more thought of by parliament, than the death of any other person, who might happen to appoint an attorney. The act of 1751 very properly aided process as well as acts; but though the act of 1751 is nothing to the purpose, for which it has been cited, yet, in another view, it is not immaterial. Consider the preamble of this act,, and the rule of construction: the intention or will, of the legislature deducible Digitized by GOOQle 320 Opinions of [Of the Colonial from the whole act, of which the preamble is part* constitute the law. There can be no doubt, but it was the will, or intention, of the assembly in 1751, that laws which should pass after a proprietor's death, should be aided as well as process. In or* der that this purpose might be attained, the act of 1751 enacted only that the governors commission should remain in force, so that as far as the sense of the assembly, in 1751, is of weight, it follows, that preserving the governor’s commission is sufficient to preserve the power to make laws; wherefore it may be inferred, from the manner of the provision made by the act of 1751, to have been the opinion of the assembly that the act of 1701 was in force. With what licence are principles rejected, and. adopted, uno fiato ? Above one hundred acts have recognised the force of the act of 1701; but these clear indications of the sense of different legislations are slighted, the sense of the legislature is supposed in one in* stance only, and this one instance is represented as a conclusive proof. 1( The argument, from the number of supple* mentary and dependant acts, and therefore of recitals, need not be insisted upon here. These acts are so many legislative declarations, to which all ought to give credit. Pop. Rep. 79* The acts that passed in June 1702, Oct. 1703, in April 1704, shew the sense of these assemblies; for no new writ of election issued till after April session, 1704. If the act of 1701 be void, we have no religious Digitized by LjOOQle Constitutions3 Eminent Lawyers. 321 establishment, no rectors or vestries. What is to become of the churches, glebes, donations to, pur« chases by, or from them, leases, &c. judgments, convictions, determinations before the governor and council, assessments, parish registers, &c. ? What will become of all those most useful acts that passed the 3d of Jane, 17IS, and the acts dependant upon them ; for the assembly then met on writs of election that had issued in the king’s name ? The governor derived his authority from the king’s commission; lord Benedict died on Good Friday before; his son, lord Charles, was a protestant; the disability, which was the cause of the royal assumption, was removed; the charter of the province had a full operation; lord Charles was restored; he became supreme magistrate in loco regis ; laws and process were to be in his name; governor Hart’s commission from the crown was determined; a new commission from lord Charles passed the 30th of May, 1715. On the principle of the objection, all the acts, that passed the 3d of June, 1715, and the dependent acts, are void. How are wills to be proved over again; administrations to be granted; proceedings of delegates enure; titles affected by the enrolment act revived; when are the courts to meet, &c. &c. ? What is to be done to prevent playing the very devil ? Quam periculosum est; res novas <§• inusitatas induceref Some gentlemen will have a great deal to do, as T Digitized by LjOOQle S^a Opinions of [Of the Colonial legislators, and lawyers. Unhappily, as legislators they cannot remedy the inconvenience; for a reenaction of the laws will not be sufficient, and a confirmation would have a retrospective operation, which they are principled against. A word or two on the matter of relation or retrospect. If an act pass the last day of a long session, and nothing expressed in it to control the relation, it is, in notion of law, an act of the first day of the session; but yet, I think, the rule lex normam imponitfuturis, is a very just one, when the application corresponds with the reason of it. It would be cruel and un_ just to punish an action, indifferent when done, as a crime, by a retrospective law. Moneat lex oportet, priusquam feriat / but the confirmation of the act of 1701 is clear of this imputation, for no person who did.not commit a breach of it would be liable to the little penalties, and none, who did commit a breach, could properly allege, that he thought the action lawful, because no one doubted the existence and validity of the law. hens est, cujus meus est rea. Besides, all this tenderness is affected, since there cannot be a case of punishment to be inflicted. All aiding acts are retrospective. Suppose a law had passed in 1701, indicting the 'pains of death on the crime of burglary, and a trial, conviction, and execution, before notice, of the king’s demise. On the principle of the objection (vide what is said by Persey in the year-book Digitized by jUooQle Constitutions.] Eminent Lawyers. 323 at large, above cited), the executioner would have been guilty of murder, the judges, governor, and council, accessaries, and yet each would have per-formed his duty. This would be more Cruel, and unjust, than even a clear retrospective act, inflicting a little penalty on an action, supposed by the agent, at the. very time of doing it, to be unlawful. Military, as well as civil, commissions were continued by the statute in full force and virtue. Suppose a court martial, trial, condemnation, and death, inflicted before notice of the royal demise. This may have, probably, happened ; what a deal of employment for Jack Ketch! ■ To conclude. Suppose, according to the rule in Plowden, the case stated, and the question put to the parliament that passed the above statutes—You have enacted that all commissions should continue in full force; &c. and therein included the commissions of American governors : Jt was the duty of these governors to act, in his majesty’s name, during his lifetime. Did you mean, that what they should do in his name, at a time when they could not know, by any human means, that he was dead, should be void, because they were not, by some miraculous interposition, informed of the king’s demise ? ■ No. It was at first said, that all the supplementary and dependent acts were void, as well as the act of 1701; but it seems that the contrary is to be Y 2 Digitized by UooQle 384 Opiniont qf [Oftht Colonial contended for, in order to lessen the weight of the argument, ab inconvenientia. The former position was more consistent. If the act of 1701 was originally void, and none of the supplementary or dependent acts have confirmed it, these acts are void $ for, as said above, it is the will, or intention, of the legislature, which constitutes law. Without execution, the law is a dead letter; the execution must be agreeable to the legislative will. Technical words are not, as in the limitation of estates, necessary to express their will. When one act is supplementary to, or dependent upon, a prior act, the construction is on both, the will being deducible from both: if the former law be rejected, the execution of the latter law will not be, as it ought to be, agreeable to the legislative will. Wherefore either the supplementary and dependent acts had confirmed the original act of 1701, or they are void. What is implied in a law, is as effectual as what is expressed. The rule,, expressio eorum, guts incite insunt, nil operan-tur, is as applicable to this, as to any subject. It is agreed, that the act of 1701 might have been expressly confirmed i a confinnation, necessarily implied, is as strong, as an express one; and what can be more necessarily implied, in a law, than that which, if not supplied in construction, must entirely destroy it? I refer, in general, to cases of construction, which are too numerous to be ap» Digitized by <^005 Constitutions.] Eminent Lawyers. 324 plied here. The principle, and not the letter of a determination, is the authority of it; and on this ground, I apprehend, there may be, whether any case in point can be found, or not, an implied confirmation. I have avoided taking notice, farther than I was led to do by 1st Vent. 14. of #hat has been done in times of great danger or turbulence, because I think such instances rather show the distemper than the constitution of the state; but as something of this kind has been indistinctly spoken of, I will add in what manner parliamentshave been convened upon accessions to the throne. The first writ of summons of the commons, now extant, was in the 49th year of Henry the Third. Edward the First was in the Holy Land, at the time of the demise of his father, Henry the Third, On returning to England, he was crowned the 14th of August, 1274, near a year and a half, after his father's death. Soon after his coronation^ he called a parliament. Edward the Second issued new writs. He being deposed by parliament, and compelled to resign, was succeeded by bis son, Edward the Third, who met the parliament, that had been called, in Iris father’s name, and had deposed him. This parliament continued, for about one month, after Edward the Third’s coronation. Richard the Second—new writ of summons. Henry the Fourth met the parliament, that had Digitized by knOOQle '326 Opinions of [Of the Colonial been called by Richard the Second. -Henry the Fourth had summoned a parliament, to meet the 24th of March, 1413. Whether Henry the Fifth met this parliament, or not, is doubtful. Henry the Sixth issued new writs. . . Edward the Fourth issued new writs, Edward the Fifth: nothing done ifi his time. He was born in a sanctuary, and died in a prison. Richard the Third issued new writs. - Henry the Seventh, the same. Henry the Eighth, the same. Edward the Sixth, the same. . Mary, .the same. On her marriage, a new writ issued, in the name of Philip and Mary. When Mary died, the parliament was sitting, 17th Noy. 1658, and proclaimed Elizabeth. Elizabeth issued new writs, 1st Dec. 1558. James the First issued new writs. Charles the First, the same. The convention parliament began 25th of April, 1660. Agreed in a committee of both houses, to proclaim Charles the Second, 8th of May, 1660. He was accordingly prbclaimed, 30th of May. ' Charles the Second met the convention parliament. • Jatnes the Second issued new writs. , What happened at the Revolution need not be mentioned. Qu< en Anne met the parliament, that was sit. ling at } 3* for preventing frauds in the plantation trade.” Digitized by CiOOQle Conttitutions.] Eminent Lawyers. 345 the offences therein enumerated,. had not proved effectual to deter persons from those crimes; and, that many offenders, to whom royal mercy had been extended, upon condition of trans* porting tliemselves to the West Indies, had often neglected to perform that condition; and, that in many of his majesty's colonies, and plantations, in America, there was great want of servants, who, by their labour, and industry, might be the means of improving, and making the said colonies, and plantations, more useful to this nation ^ enacts, -that, where any persons shall be convicted of the felonies therein specified, it should be lawful for the court, before whom they were convicted, to order such offenders to be sent to some of his majesty's colonies, and plantations, in America, for the several terms (f seven years, fourteen years, or for life, (according to their respective crimes,) and to convey, transfer, and make over, such offenders, to the use of any person, who shall contract for the performance of such transportation^ and to his assigns, for such terms. , It also enacts, that such contractor shall, previous to the delivery of such offenders to him, to be transported, give sufficient security, to the satis, faction of such court, effectually to transport such offenders to some ofhis majesty’s colonies, and plantations, in America, as shall be ordered by the said court, and procure an authentic certificate from the governor, or chief custom-house officer of the Digitized by GooQle 346 Opinions Op [Of the Colonial place, (which certificate they are thereby required to give forthwith, without fee, or reward, as soon as conveniently may be,) of the landing of such offenders so transferred, as aforesaid, in that place, whereto they shall be ordered, (death, and casual* ties of the sea, excepted,) and tha^none of the said offenders shall be suffered to return, from the said place, to any part of Great Britain, or Ireland, by the wilful default of such contractor, or his assigns. This statute, likewise, 6th Geo. I. c. 23, for the more effectual transportation of felons, enacts,, that all charges, in and about making the contracts, taking securities, and conveying of felons, in order to be transported, shall be borne by each county, riding, division, liberty, or place, for which the cotirt was held, for ordering such felons to be transported, and directs the manner of the payment of it, by their treasurer, to the contractor. Agreeable to these statutes, such contracts for the- transportation of felons have hitherto been made, the expenCes thereof borne, such bonds executed^ and such certificates of their landing abroad procured; but the merchant, who usually contracts upon this occasion, has now received advice from his correspondent at Maryland, that the assembly of that colony have imposed a tax of forty shillings upon every convict to be landed there. Such vote of that assembly must necessarily produce one of these two consequences, either, that Digitized by knOOQle Constitutions.] Eminent Lawyers. SIT the courts here must not order the felons to be transported to Maryland, or any additional expence of forty shillings per head, to be paid by the treasurer of the county, &c. from whence such felons shall be transported, and which expence, so far as relates to. London, Middlesex, and the home circuit, (from which places the transports are very numerous,) his majesty has been graciously pleased to take upon himself, and to pay out of his own purse. Quare.—-Have the assembly of that, or any other colony, authority to pass such law; and if they have not, cannot the contractor’s agent demand the certificate prescribed by the statute of the convicts being landed thete, without payment of such tax ? I am of opinion, that no colony can make such a law, because it seems to me in direct opposition to the authority of the parliament of Great Britain; but the charter of Maryland, and the power thereby given to make laws, is not stated. There always is a restriction, that they shall not be contrary to the laws of England; but this matter should be set right, by a proper complaint of the law itself, and Mr. Sharpe should be acquainted with it, in order to his taking the proper steps to have the law repealed, or declared null; for, it is a matter of public concern, and derogatory to the crown, and legislature, of Great Britain. By the Digitized by GooQle 348 Opinions of' [Of the Colonial same reason, they might lay aduty upon, or even prohibit, British goods. May 6, 1755. Will. Murray. (4.) Mr. West's opinion on the question, when the six months commenced, wherein the crown might repeal the acts of the Pennsylvania assembly. To the right hon. the lords commissioners of trade and plantations. ■ My lords. In obedience to your lordships’ commands, signified to me by Mr. Secretary Popple, I have perused the Charter of Pennsylvania, transmitted to me, and particularly considered those clauses therein, which relate to the powers of enacting laws in that province; and, in answer to the first question, which your lordships have been pleased to propose to me, I am of opinion, that there is nothing in the said charter, by which the inhabitants of the said province are prohibited the re-enacting, in their general assembly, the substance of any laws, which may, at any time, have been disalloiued by the crown. As to the second question, likewise proposed by your lordships, I am of opinion, that the six months, during which, any laws passed in the said ' province are repealable, are to be counted from the time of their being delivered to the privy councils and, therefore, unless the agents of that province do deliver duplicates of their laws, unta the privy Digitized by knOOQle CoiutitHtions:] Eminent Lawyers. 349 council, at the same time, as they are delivered unto your lordships, the time, during which they remain with your lordships, can make no part of the six months; but the said six months must, in such case, be reckoned, from the time they are de-livered.to the privy council, subsequent to your lordships' report. ' March 24,1718-19. • Rich. West. (5.) The opinion of the attorney and solicitorgeneral, Raymond, and Yorke, relating to the time, when the three years, for the king's approval, or repeal, of the Massachusets acts, commenced. To the right hon. the lords commissioners of trade and plantations. . • May it please your lordships. In obedience to your lordships* commands, signified to us, by letter, from Mr. Popple, of the 31st of May last, transmitting to us the inclosed extract of the charter of the Massachusets-Bay, .'and also of the governor’s instructions, and thereupon desiring our opinion, whether the three years, in which his majesty is either to repeal or confirm the acts passed there, are to be deemed to commence from the time that they are reyived either by the board of trade, or by one of his majesty’s principal secretaries of state, or from the time they are presented to his majesty in council, for his pleasure thereupon: we have considered the said . papers, and the questions referred to us thereupon, .and are. of opinion, that the three years allowed. Digitized by knOOQle 350 Opinions of [Of the Colonial by this charter, either for the tepeal or confirma-* tion of such laws, are to be taken to commence; from the time they are respectively presented to his majesty, in his privy council, the words of the clause being plain and express for that purpose. June 2, 17'22. Rob. Raymond. P. Yorke. (6.) The opinion of the attorney-general, Northey, of the bad effects of temporary acts of assembly, which, in his judgment, could only be remedied by an act of parliament. ■ To the right honorable the lords of trade and plantations. " May it please your lordships. In obedience-to your lordships’ commands, signified to me by Mr. Popple, I have considered of the several papers transmitted to me, and herewith returned, and your lordships having demanded my opinion to your returning an answer to the order of the lords of the committee of the council, dated the 5th day of June last, whereby your lordships were desired to examine and inform yourselves, how and by what grants or authorities the plantations, in America, do claim the liberty and power of making temporary laws, to continue in force for so short a time, whereby her majesty’s prerogative of approving or disapproving snch laws is evaded, and to propose to that committee what methods you shall judge most proper to be taken, in order to the setting aside those practices so prejudicial Digitized by GooQle Constitutions.'] Eminent Lawyers. 351 to her majesty’s interest, and the trade of her subjects ; and I do most humbly certify your lordships, that, as to such laws, which are made in her majesty’s plantations, not granted, in property, to any subject, the mischief complained of may be prevented by her majesty’s instructions to her governors thereof, and there is already, among the instructions, a copy whereof was sent me, a full instruction for that purpose ; and, therefore, all that I conceive necessary to be further done, as to them, is to require a due observance of that instruction, by her majesty’s governors. As to laws to be made, in the proprietary plantations, I am of opinion, that mischief cannot be remedied there, but by act of parliament of Great Britain; for, that the proprietors thereof have a right vested in them, of the power of making laws granted by their charters, and are not, nor can now, be put under any other restraint, or regulation, than such as are contained in their respective charters, but by act of parliament. As to Pennsylvania, directions were given for perfecting the agreement with Mr. Penn, and for preparing an act of parliament, to supply his inca-*, pacity, and to alter the method complained of, as to temporary laws, and the time limited for transmitting, and approving, laws m^de there; but, during the last session of parliament, a bill for that purpose could not be settled, in regard of some dif- Digitized by GOOQle 358 Opinions Of ' [Of the Colonial ferences, between the mortgagees, and family of Mr. Penn. I observe, that there is not any obligation, by charter, to return the laws made in the proprietary plantations of Connecticut, and Rhode Island, for her majesty’s approbation; and, therefore, there will also want an act of parliament, to oblige them to transmit their laws, and to have them submitted to her majesty’s approbation. July 22, 1714. Eow. Northey. (7.) The opinion of the tame lawyer, concerning the illegality of the legislative proceedings at New York, against Bayard, and Hutchins. To the right honorable the lords commissioners for trade and plantations. May it please your lordships. , In obedience to your lordships* order of reference, signified to me by Mr. Popple, junr. I have considered of an act, passed at New York, intitled, an act for declaring the illegality of the proceedings against colonel Nicholas Bayard, and aiderman John Hutchins, for pretended high treason, and for reversing, and making null and void, the said judgment, and all proceedings thereon; and do humbly certify your lordships, that her majesty having, by order in council, of the 18th of .Dec. 1704, directed, that it should be signified to the governor, or commander-in-chief, of New York, for the time being, that colonel Nicholas Bayard, and. Digitized by knOOQle Constitutions.'] Eminent Lawyers. 353 aiderman John Hutchins, do enter into recognisance on record, with condition, that they will not bring any action against any person, who had acted in the prosecution of them, by order of those who had power to command them, or that a new bill, with a clause of indemnification, be trans* mitted for her majesty’s approbation; and it not appearing, that such recognizance was given, and the act now transmitted declaring, and enacting, that the proceedings, and prosecutions, against them, are, and were, undue, and illegal, and .no clause of indemnification being in the same, her majesty’s order not being complied with, the same objection remains to this act, as was made to the act formerly transmitted. March 14,1705-6. Edw. Northet. (8.) The opinion of the attorney and solicitorgeneral, Yorke, and Talbot, on the power (f the assembly of Connecticut to make laws. To the right hon. the lords commissioners for trade and plantations. May it please your lordships. In obedience to your lordships* commands, signified to us, by two letters, from Mr. Popple, transmitting to ns copies of the charter of the colony of Connecticut, and of the memorial of John Winthorp, esq. hereunto annexed, and desiring our opinion, in point of law, whether the said colony have thereby any power vested in them of making laws, which affect property, or, whether that A A Digitized by UooQle 354 Opinions of (Of the Colonial power is not confined to the making of by-laws only, and whether, if they have not the power of making laws affecting property, they have not forfeited their charter, by passing snch laws; we have considered the said charter, and memorial, and are of opinion, that, by the said charter, the general assembly of the said province have a power of making laws, which affect property; but it is a necessary qualification, of all such laws, that they be reasonable in themselves, and not contrary to the laws of England; and, if any laws have been there made, repugnant to the laws of England, they are absolutely null and void. ■ Aug' I, 1730. P. Yorke. C. Talbot. (9.) The opinion of Mr. Lamb, on an usurped assembly, in South Carolina, ' To the right hon. the lords commissioners for trade and plantations. My lords. ■ In pursuance of your lordships* commands, signified to me by Mr. Hill’s letter of the 2d instant, wherein you are pleased to desirp my opinion, in point of law, upon the following act, passed in South Carolina, the 12th of February, 1719,1 have perused and considered1 the same, viz. M an act for regulating the courts of justice.” This act is of a very extraordinary nature, and, was it now sent over for his majesty’s approbation, I should make many objections thereto; but, as it Digitized by LjOOQle Constitutions.] Eminent Lawyers. 355 is not sent over for that purpose, I shall omit those objections, as being unnecessary, and only observe, how this act appears to me, which I find to have been passed, in the time this province belonged to the lords proprietors, but the same has never been confirmed by them, or the crown. And the time it passed was, when this province was in great confusion, and the inhabitants opposed the power of Mr. Johnson, the governor, then appointed by the lords proprietors, and chose a governor themselves, who passed this act, without any authority so to do; and, as it appears, by governor Glen’s letter, without the proper consent of the other branches of the legislature, the assembly having, before that time, been dissolved by Mr. Johnson, the legal governor. I am, therefore, of opinion, that this act, which was obtained, and passed, by an usurped authority, should not be considered as a law; and it appears, by governor Glen’s letter, it has not been considered so, by the practice, that has been in use since then, concerning matters contained ip the said act. As to what is contained in governor Glen’s letter, about removing one of the assistant judges, how far he has acted, in that respect, consistent with his commission, and instructions, and whether there was sufficient reasons given for ao doing, must be submitted to your lordships, from the information he has given you on that head. May 30, 1750. Mat. Lamb. a a 2 Digitized by GooQle 350 Opinions of [Of the Colonial {10.) The opinion of Mr. Fane, on the same topic. To the right hon. the lords commissioners for trade and plantations. ' My lords. In obedience to your lordships’ commands, sigr nified to me by Mr. Popple, I have considered an act passed in Carolina, during the government of the lords proprietors, intitled, “ an act relating to the biennial and other assemblies, and regulating elections, and members,” by which act, I observe, that there is a power given to the assembly of this colony, to meet without the consent of the crown. The charter granted to the lords proprietors, does not, in the least, warrant a proceeding, so derogatory of the power, and authority, of the crown. The power of calling of parliaments, is admitted to be an inherent privilege in the crown; and, I believe, this is the first instance, that such an attempt has been made to deprive the crown of it. I think your lordships should shew your disapprobation of a law, which, in so high a degree, encroaches upon the prerogative of the crown; but I must observe to your lordships, if the facts are true, which are stated in the memorial of Mr. Smyth, the chief justice, I think it cannot be considered as an act in force, not having received a due confirmation, agreeable to the rules settled, by the lords proprietors themselves, ' 4pril I, 1737. Fran. Fane, Digitized by Google Conftittdions.} Eminent Lawyers. 357 (11.) The opinion of the attorney and solicitor* general, Harcourt, and Mountague, on similar topics of incompetence* To the right hon. the lords commissioners of trade and plantations. May it please your lordships. In obedience to your lordships’ commands, signified to us, by a letter from Mr. Popple, hereunto annexed, we have considered the manner of passing the act of revenue, sent to the lord Colepeper, in the year 1679, under the broad seal of England. We have likewise perused the extract of the commission granted to the said lord Colepeper, bearing date the 6th of December, 1679, and the extract of colonel Hunter’s commission, both which have been transmitted to us by Mr. Popple, and by them it appears, that the method now used., in passing acts for Virginia, is extremely different from what it was in the year 16'79. By lord Colepeper’s commission, the governor, and council, at Virginia, are to lay before the king, In council here, such bills as shall be prepared for making new laws for that colony, in order to have the sovereign’s approbation thereof ; and if that be obtained, such bills are to be transmitted, under the great seal of England, to the assembly in Virginia, where (if what shall be so transmitted, be assented to, by the major part of such assembly) it becomes a law from thenceforth, until it shall be repealed, by the like method and authority; bat, Digitized by knOOQle 858 Opinions of [Of the Colonial by the constitution, which seems now to be established, the general assembly in Virginia, have a liberty of enacting, among themselves, such laws as they think convenient, and the same are to. be looked upon in force, until the sovereign, upon a transmission hither, shall disapprove the same; provided the transmission be made, within three months, after the act passes, in the assembly at Virginia, fbr the sovereign here, either to confirm or annul the same. The former of these ways, for enacting new Jaws, seems to us to be the rule, that must govern in the present case, concerning the said act of revenue, which passed in 1679, under lord Cole-peper’s government, and the method, that was then taken, for passing that act, appears to be directly opposite to the said method, that ought then to have been pursued; for the bill was originally begun here in England, and from thence transmitted, under the great seal of England, to the general assembly in Virginia; there the bill was not assented to, as it was transmitted, but was returned back with two provisoes added thereunto, which provisoes being made part of the said bill, ought regularly to have been wholly approved of, or rejected, by king Charles the Second; but neither one, or the other, was directly done, for the bill, with one of the provisoes, was ratified, and confirmed, by the said king, and the other proviso was disavowed of, and annulled. On consideration Digitized by GooQle Constitutions.'] Eminent Lawyers. 359 whereof, we are humbly of opinion, that the ratification, and confirmation, of the said act, with one of the provisoes only, did become null, and void, by the disallowance of the other proviso. If any part of her present majesty’s revenue subsists by the authority of this act only, we con- ■ ceive it may be for her majesty’s service, to have a new bill pass in the general assembly at Virginia, and be transmitted hither, for her majesty’s approbation, pursuant to the method prescribed in colonel Hunter’s commission, which will take away all doubts concerning the collecting, and payment, of the said revenue. Dec. 23, 170". Sim. Harcourt. Jas. Mountague. (12.) The opinion of the attorney-general Northey, that care should be taken, for the regular transmission, in order to the consideration of the queen's councils. To the right hon. the lords commissioners of trade and plantations. May it please your lordships. In obedience to your lordships’ order of refer* ence, signified to me by Mr. Popple, by his letter, dated the 14th day of February last, I have perused, and considered, of the inclosed act, passed at Barbadoes, the 8th of August, 1706, intitled, “ an act for the better enabling the executors of -Christopher Estwick, esq. to pay the debts of the said Christopher Estwick,” in which act it is recited. Digitized by GooQle 360 Opinions of [OJthe Colonial that Richard Estwick, gentleman, having two sons, Richard, and Christopher, and two daughters, Elizabeth, and Anne, devised one half of his real estate to Richard, and the heirs of his body, the other half to Christopher, and the heirs of his body, with cross remainders entail among them, charged with the payment ef his legacies, remainder to his two daughters entail, remainder in fee to his widow. That Richard, the eldest son, dying without issue, the whole estate came to Christopher, and, that he having made his will, and thereby made some provision for his only son, and two daughters, and made several executors, and not having fully discharged his father’s legacies, died incumbered with debts, to the amount of six thousand pounds; that the said Christopher was also seised of several negroes, of his own purchase ; that the creditors had commenced, and threatened, suits against his executors, for recovery of their debts, whereby his personal estate, and his negroes, were in danger of being wholly extented, and sold, to satisfy them; and, if the negroes are taken off from the plantation, whereof he was seised entail, the plantation would become of little value to the son, which could not be prevented, by any way, but by applying the whole profits of tljie estate to discharge the incumbrances, and by allowing the creditors interest, in the mean while, at ten per cent, and that the executors did conceive, that this way, the estate would, in all pro- Digitized by GOOQle Constitutions:] Eminent Lawyers. 361 bability, be preserved entire, and be cleared by the time the son should come of age; and, therefore, it is enacted, that the executor be empowered to apply the profits of the whole estate towards payment of debts, and incumbrances, and to allow the creditors ten per cent, interest, till paid off: which act, I am of opinion, is unreasonable, in regard thereby, the entailed estate, which descended to the infant, and was not chargeable with the debts of his father, is charged with the same, and also with ten per cent, interest, and no provision whatsoever is reserved for the son,, during the time the debts are clearing. I beg leave to take notice, on this occasion, that the governors of the plantations do not observe their instructions, in transmitting the laws passed in the plantations, within the time prescribed for them to transmit the same. It appearing, in this particular case, that this act was passed the 8th of August 1706, and not received, by your lordships, till the 12th of February, 1711; and, therefore, I submit it to your lordships’ consideration, whether the governors of plantations are not to be put in mind of taking care, that laws, passed in her majesty’s plantations, be transmitted for her majesty’s approbation, in due time. April 25, 1712. Edw. Northey. (13.) The opinion of the same lawyer on the queen's power of repealing the acts of the Maryland assembly. Digitized by GooQle 362 Opinions of [Of tie Colonial To the right honorable the lords commissioners for trade and plantations. May it please your lordships. In obedience to your lordships’ commands, signified to me by Mr. Popple, junr., I have considered of the questions mentioned in the annexed letter; and as to the first of them, viz. whether in case her majesty do not signify her pleasure within eighteen months, the suspending act do then expire, or whether the same do remain in force, after the eighteen months, until her majesty’s pleasure be signified; I am of opinion, the suspending is to continue in force for eighteen months, unless sooner determined by her majesty’s pleasure; and the clause, that no prosecution shall be, until the expiration of eighteen months, or until her majesty shall declare her pleasure, I think, can have no other construction; and, therefore, in all events, the act is to determine at the end of eighteen months, without her majesty’s pleasure declared, and sooner if she shall so please to declare: and as to the second question, viz. whether in case her majesty do sign ify her pleasure for the continuance of this suspending act, for a certain time after the expiration of the eighteen months, or until her majesty’s further pleasure, the said act will remain in force accordingly, I am of opinion, all the power re* served to her majesty by the act, is to determine the act within eighteen months; but her majesty Digitized by GooQle Constitutions."} Eminent Lawyers. 363 cannot, by her declaration, continue longer the suspension of the former act. December 19, 1705. Edw. Northey. (14.) The epinion of the samelazvyer, on the unfitness of an act of the Jamaica assembly, as inconsistent with the queen's prerogative. - To the right honorable the lords commissioners for trade and plantations. May it please your lordships. In obedience to your lordships* commands, signified to me by Mr. Popple, I have considered of an act passed in the island of Jamaica, intitled, 4t an act to provide an additional subsistence for her majesty’s officers and soldiers, and fcr other uses;” on which law, I observe, that the parts of it, which relate to quartering and subsisting her majesty’s forces, are temporary, and are to expire on the 1st of November next; but other parts of the act, which, I apprehend, intrench on her majesty’s prerogative, are perpetual.- As to the provisions for subsisting the soldiers by deficiencies, I am not able to judge, whether it be a sufficient provision or not, and being only temporary, if the same be found by the officers of her majesty’s forces to be insufficient, it may be rectified when another bill shall pass: however, the clause in the act, that no person shall have any share of the money to be raised by that act, that marries any inhabitant of that island, is unkind. . And as to the other parts of the act, which are per- . Digitized by knOOQle 364 Opinibns of Eminent Lawyers. [°S^ Colonial pptual, viz., the clause that disables any officer or soldier (the governor excepted) to use, exercise, or enjoy any civil commission, power, place, or authority, or in the militia in that island; and the clause that lays a penalty on all persons not being native born subjects of England, Ireland, or the plantations in America, that shall use, exercise, or enjoy any commission, civil or military, (except in her majesty’s forces in that island under her pay): I am of opinion, they are both against her majesty’s prerogative, and the latter carries the disability further than what is done by the act of the 7th William, which is restrained to the courts of law and the treasury, and that matter is not concerned in the title of the act, and therefore that this act is not fit to be confirmed. July 9th, 1706. Edw. Northey. . END OF THE FIRST VOLUME. T. DAVISON, Lombard -street. WhiteMan, London. ' ■ jitized by GooQle Digitized by Google Digitized by Google