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Las diagrammes suivants illustrant la .-n^thode. 1 2 3 4 b I D 73^/3 OPINIONS or i EJIIiNEiNT LAW\ER:i.<5Si««^ ^^ ON VARIOUS POINTS OF* JUL 138? r % ""M EKGLISH JUIUSPRUDEft^^ .S^^ CUIF.FLY tOMERMAG THE COLONIES, FISHERIES AND C0M3!I:RCE OF GREAT JUIITALX: COLLECTED AND DIGESTED, FROM THE ORIGmALS IN THE BOARD OF TRADE, AND OTHER D- /OSITOHIES. BY GEORGE CHALMERS, Esu., F.li.S., S.A. lU^RLINGTON: C. OOODKICH AND COMPANY. 1858. , r HE FACE TO FlIIST AMEIUCAN EDITION. T answors ot'tlK- wiso, th()ii<.li la.st in order, are >-'las>V('rci-ii(y we liavc now posscsscil nearly one hundred leaiiy li»l'iiri;-et the history of the past. vears, we are tn' I'll! 11 ^\■e pennil oursels-e> (o fn-nft it, our descendants will tak- ii< to ta-k, and thou-h sellisi '• w liaMi.i- |in,icii|y dene I'or us", let ii> nu'ss mnv sav, reiiu'i'.ilier what (Hi:- aiiee-liMs have done. This hook. Well studied will iepa\- t he .\ iiieriean n !• his pains. Cnh.nial ;:nd l.i(.\ineial doinination, inidei which tlie American colon- I IV FUKl'-lCE ;os s,i ]on,a- suflorc^d. is at an oml huf its rocords deserve to ho treasiii (Ml lil). ()l )sr-cro voy (sayi Livy.) admit t ^i ;irs.';(;t ( opt hy llie ()hsfr\iii;j.- low. 'I" ten in Fur Ri ope. ex- le aiijoiniiij^- IJntisli (mhuii- ios. the u'row 111 o| w Inch I t is so pleasant lor us to wit- aiiil \v!i.. so largely avail ihoiuselves of our iiuhli cations, will led mi iutere-t in tl production of our pre .ss. :elve.' I- , and immediately was till' autliDi' Ol coinitiler. we ma\" mention, in addition to the Annals am u-< collection o fOl tiniou- a Collect ion A' T rea tie brt we ( Jieat Britain and otlK'r l' owers 111 vols. Svo. iOllOMIl :>n iiie o fTI lOllKb V line, aullior of thr Iti-htof Man, (tenth e(litinn> IT'.'-', under the as-u.iiu'd name of I'lMiieis ()ld\s ; a Clu'i^uiiloLi-icitl A''i'(iuut )f ('(imiiieiee a lid Coi iia'j:e ill (Ireat I'ritain iVoi 11 i ue uc toratiuii to iSjd, f.ondoii. ISlI); Consideration s on Comm;.'rce, IJiiHion, Coin, Circulation, and E.xcha 11 (TO '•F rilE KDITOi;. vii f-ondoi, ISI I: hut ho is most widolvknoui, among -cncM-al ••'^^nlershyhis Lilb ofMary Queei, of S.ots. Loudlu 18 !8, liv"l>. ito^ .•cprinteu in ;^ vols. 8vo. and his (klcdonia.or an Accnimt. Historical and Topogra,,hic.oCNorth Britain, vol. I. London. 1807 4to. vol. IJ. London. 1810 4to, both ofwhich arc works ofgreat and permanent value. The i'ah.donia was no^or completed, but it was tlie principal ..r..,nal work of his lilb and occupierla large proportion or hi,, leisure hours for a period of more tluui Uv,^nty years. It was designed to extend to five voIumc.<^, but though he had made extensive researches for the pur- pose or completing it, the materials he had collected were not iound, at his death, in such a state as to war- rant tlieir publication. IIo died at London on the 31st of May 182-5, at the ago or eighty-three, and as his last illness was i short one, he kept up his literary activity to nearlv the close ot lus lile. The present is not a lit occasion ibr a criti- cal appreciation or Mr. Chahners' literary ability but the value or his contributions to the domestic hls'torv 6r Great Britain, and to that or her colonies and their re- lations to the mother country, is admitt,.] to be great Tlie work a new edition of which is now on'ered to the public, though relating to questions not much dis- cussed at present, will be Ibund to touch upon principles whose practical bearing is even yet bv no means ex- hausted, and it is believed to posses.s scarcely less in- terest ror the citizens or the United States, than lor the ■■,»=- • n i'l VllI ini>(,HAPHli \I. SKKT' IT. people of tiiusc Aiaerieau Pniviiiee wliicli still reninin connected with the liritisli ,nnvn li is in I'act the most complete and authentic record AVC 1 ii i lie (current ol Icl^u o'imiun m between that countrv auc! JMViiland upon the r.'lalion her .Vuierican colonies, and. a Jj^lCl 1. has been ver y frequently referred to hy the al)lest American jurists in tlie discussion o di llie a'cat (lues- tions it is so well calculated to elucidate. lla\nig never t London in e a been reprinted since its lirst appearan.: 1814. it has Ijecoine extremely rare, and ilu p uhlishen believe that thev are renderiii'ca useful service to the professiona gene raiiv land tlie historical iiKiuirer^ l)y makini:; more iccessihle so valuable a repository of legal d political duclriiH- aim po BIOGlUPniCAL NOTICES OF AUTHORS Alau.-. .SVr Jo/,n Fortcscuc Lord Fortescue. Ardrn, K,r Richard P.. T^rd Alvanley Chotmrr,. Geor.r,, dnk of Cor^mittoe of Pnvy Council. Cook, .Sir J,.h.,, K,,. /^ Advocate. Com^non Hrvry. Tlishop of I^ndon. ' De Gr.'f., Sir \MUi.f tlio I\i.lls>. Strahiiii. /)r. William. Of the Commons. Talhiil, Chnrle.'i, LMr(I-( 'jiaiiccilnr. IVm/ile. Sir William, Master of the Rolls. Th'im/i.\oii. Sir \\ illiam, lianm of the E.xchcqner. 'Priliy. Sir lirnvi'c. Chii'l' .lii>lifo. TVct'or, Sir '/'Imma.-'. < 'hii't .1 notice. Ward, Sir /'.dintn'.. Ciiicl Flaron. HVnri'", Sir ('leiinnl. .'Solicitor < leneral. West, Rirharil, VUnnvvWin- <.f inlanii. }Vil/e.t. /'.iltraiil, .In-tin' Kin:,' •< lliiuii. Wille.s, Sir Jiilin. Chiel .fii.«iiice. H I /mini,' ton, Su /Vanri.w Snlicilor (MMienil. Wynnt. Sir William, N'uar (ieneial. W(vid, Robert, Ifocfor of Civil Law. Yor/;e. Hull. C'tarlcs, Lonl-Chaiici Uor. Yorlcf, Sir /'hilip, (.^hief Justice. Pagg. 37 20 28 U 28 88 9t 24 29 28 28 84 28 32 25 28 29 20 37 21 2*> 25 28 89 26 21 22 21 27 2(> 85 '28 19 38 23 83 27 CONTENTS THE KING'S PREllOG VTIVE ABROAD. I. OF HIS ECCLESIASTICAL AUTHORITY. Tl; 170- c opinion of tho Attorney (ienoral Nortl ipy, on til is subject in Page. l/U.., rMat.ng to tl,o Je«uit.s and ,„.pi.s(.s i„ Marylun.i. The lotter of tho Ri^-ht Rev. Dr. (hI.som, the n,.,hop of LonJon to the Duke of Nowea.s.ie, ,„,.,u the r.ght of tho iudepeDcJcnt niin- isters in iV'ew England, to hold .synod.. The joint opinion, of Attorney and Solicitor-G-ieral, Vorke and V\ earg, in 17i.-|, on the same .sni.jeet. Mr. WeM\s opinion, in 171'.i, on the king's right to present to va- cant hciiitici.s m Virginia. T.o opinion, of ,he Attorney (Joneral, Northey, relative to the clergy of Virginia. The »anie lasryer'.H opinion on Poprr, in .Maryland. Tho ISishop of London-.. oh.s,.rv,„..,n, on a l..w of Virginia for tho • upprc-. .n of Vice. The .Vttorney (;eneral. .North.Vs, opinion on the gnnling of let- or. o ad.uiui.,tratiua ou tho .amo e.„ato, both in K ugUnd, and m luo eoloiiio!). 42 44 45 53 56 GO 63 C3 n. (,F Tin; KINu-^ civil ALIHOUiri'. Pint. Or HIS Ri,.Hr5 ok ntneKitrv. TLe Lord Chief JuMice llolf, „p.nio„, U Juno, Ui'JO, that th. III! -4 h ' \\ f 1 ^^^^1 ifH xn CO«TENTS King might take away the Charter of Maryland, (Lord BaltiTiore's,) it being in a case of necessity. The opinion of the Attorney and Solicitor-aenural, NortLey and Ilarcourt, that the Queen, hi-.ving a i.ght to govern all her people, may resume a Guverninent under a Koyal Charter that had been abused. The opinion of »! e Attorney G jncral, Northoy, on the Queen's prerogative to receive a surrender of the Peni-sylvania Charter. The opinion of fhe Attornty and SolicitarGeneral Ryder, and Murray, on the Kings prerogative to receive the resignation of the Charter of Georgia, and to estaUlish a Uoyal Government. The opinion of the Attorney General Northey, on the surrender of the Bahama Charter. On the King's Iliu'ht to the three lower Counties on Delaware, by Attorney and Solicitor Geaerai, Xorthcy and Thompson. Of the King'.s authority over t.'uernscy and Jersey, by tho At- torney an- i oolicitor, Uydirand Strange. Of the King's right to tiic i.-slaiuLs in the river l)claft„.-e, by tho Attorney and Solicitor (.Jun-.Tal Uaymond and Yorke, in 17-2I. Of the Kinf^;'s right to certain waste lands in New Hampshire, by the AUoriicy and Solicitor General, llyder and Murray. Mr. West's,, pinion h.jw far the King has a right I., gr»nt ceded lands. The opiinon of the Atturney and Snl.ctor, Vnrke an. I Tilbot, whether the King's right t,. the lands.it r,.Mi,i,,iiid r, main in the Crown. Of tho King's right to tlie wood.^ in (he Ppjvuk e ..i Maine bv Mr. \V,M. ' ' Page, 65 G6 G7 69 72 73 88 90 91 105 !0G 133 Mr. l-'ane's opinion on tiio King's right to tiic wi.o.l.s in New Kii gland ,37 Tho opinion of tlu- Attorney :iii-I Sijluit..]- ( J.nci-il. Y .-ke i>nd Talbot, on the King's right to tin; woods ni N,w Kngiand. 139 Tlitid. Ok Mil KiM.'s I, RAN Id. The opijiii)!! ;if the Alt...- , t;,n-rai Treby, in 1689, ou a grant, for Ufu, of Auditor of tho Virginia revenue. joq CONTENTS xm Pagt. 144 146 147 119 150 i.-.o Of the King's right to mines in New Jersev hv t^« A»* ^ «d Solfcitor, Ra,,no„d a„.l Yorke. ^' ' '^""'""'^^ So^:.!rr"' ;'f *" '"'"'^ '" ^'^«"^'^' ^^ ^'^o ^«o-ey and '^^ Holic.'orGenerai, Somars and Trevor. Of the peculiar Escheats i„ New Jersey, which was in the hands ' ^^ of Propr,etar.c«, by the AttorneyGeneral Northey ,43 Mo!:;^ "' ''' "^'""' '" '^'^^'^^' ^^ ^^« ^^oliator.General On the escheat of ambergris, in Jamaica, by the same lawvor Gel?L::I:r' ""^^ ^"^ "^^-- ^" ^-^'-' ^^ '^^- At.rney. ^^^On^the Queen's right of .uitronts, i„ New York, by the same ^^'' "''"''" '" ''' '''"«"^ "^'^ ^" troasurctrove, i„ the f .> . *' "^'fe''' w the tornloryof \vi1,,m ;>, v foundland, which had Leon grantc J to S.. r /. '"" „, . «"*"'^-"° '^"■<^'-Wgo Calvert in !(;-{ 151 1 he opinion of the Attorney Goner-.! ir.,r. . riglUof .cheat, to an estate m'j::::; ''''^^"""' •^'' •''•' ^^•'-■^ The opinio,, of Mr. J,.ek.son on the KinL' s ri.l.t ... > • trees growing ... ,he K,,„„b,,k Kivor ' ' ' '"'''' '""" ^- r., . or , he pre.rv.,on of „.e .,,,„,„ ee. n. X.,. k„; .__.^^ '"-'^*"-'«'"°"t''oe.,n,,,.eredpartofStK„f.., eon. in ..ne. "'^'^'' '^'"" '^"^"'« "^ ''"'V '>' «r.y «oNpo' 150 153 l,J7 Page. XIV CONTENTS Mr. Lamb's opinion on the appointmeat of SherifiFs in New Jer- sey. 161 Mr. Fane's opinion on the King's power k.o confirm the titles to land in Couneoticut. 163 The opinion of the Attorney and Solicitor-General, Ryder and Murray, en tlio King's right to make new grants of land in New Kauipshirc. 164 The opinion of the Attorney General Yorkc, on the manner of discussing objections to the King's grants. 168 The opinion of tin .Vttorney and Solicitor-General, Yorke and Talbnt, on the (jucstion between the King and the Proprietors of the Nonhcrn Neck, in Virginia. 169 The opinion of the Attorney and Solicitor, Ryder and Strange, concerniii.T the grants of lands in Carolina, before and after thepur- cha.>?e, liy tiic King, of the Proprietors' rights. 17! The opinion of the Attorney and Solicitor General, Yorke and Talbot, on grant.s that a 'o voiil for uncertainty. 175 The opinions of Mr, F.iiie, and of the Attorney a^.'d Solicitor-Qen- cal, ^VllK's anil Hyib'r, on the question of patenting lauds, under old gra.itb from tiir Proprietaries of Ciirolina. Tiic o[ii.ii(Mi of tiio >aiia; lawyer.^, on tiio nullity of a similar grant to Mr. Ilodgsiin. Tilt; npiiiiiin nf Mr. F,ini>, on he "aliJity of the grant of the See- rctarv"." iirtii'i' in South ('aiollua. The opinion of the Attonit'y < Jciicral Willos, on the right of the Proprietor of .Maryland, to app;iint to offices, unil 'r the King's Charter". luUlill. Ol' AN VMIM.M.D! IIXCMSION OF HIE Kl.Mi's KlUUT OF GRANTINO A Coi.ONUr. OlFK E. The ojiinion of tlu Solicitor (leneral Montague, on the exclusive right of the llovornors, to appoint naval otheerM. 181 Fifth Ok iiii; Kim.'s i.im.kai. u iiisiiirnoN ovlk. iii.s tcbri- Till; IKS AnnoAi>. The iipinion >il' the .Vltoniey and Solicitor (jeneral, R.iymond and Yorke, ou the Ku .^'s power to establish a Civil Jurisdiction at Oihrallar. 18'. 176 173 178 179 XV Page. CONTENTS The opinion of tLe AttorneyGoneral Northey, th„t the Queen ii..gl.t estabL^b a Court of Equity in Mn«.sachu.sett.s Bay. ,94 of fw y;f Vf "" ™ *^' ^^'"^''' ''^^' '° '^'^*'^^''«'' - "«- nffi- 01 Jaw at Harbadoes. 105 The opinion of the Attorney and Solioitor-General, Ryder and Murray, on ^he K.ng's right of establishing a Gover.n.ont in Geor gia, upon the surrender of the Trustees. in l^^rxl:^^' ^" ''' ""'''' ''^" '''''"^' '•" ^--^'>-. "' 199 The opinion of Chief-Justiee Morris, in Now Jersey, on the i^-mg's power of mercy. ^ 200 nr. HOW FAR TIIK KINGS SUBJECTS WHO vvr GEATE, CARRV WITH THEM THE LAU ')P ^Z.];^^ I'lrsf. As TO Tui: Common Law Mr. West's opinion on this subject in r^^O The opinion Of the At.orncy and Solicitor General Pratt ,n^ ^ Yorke, that the king's subjcCs carry with th^ - th , ^1 .1 a J ^ai,j Willi lu^ - tile cnninion l.iw wherever tiny may form settlements. ' Mr. F„„e .s opinion, how far subjects can bo detained in eus.odv on a charge of piracy. cusiodj, c- 207 oecond As m xn.- , AS TO Till. I.XTKN,10N OF TliH SrATIlT LaW TheAttorney.Gcneral Yorke's opi.ion on this su.,oct, in K2,- 208 .hcopinionof theAt.oincy and Solicitor. Henley, and Vorke that^the .ubjcct. em.gr.t.n,, do ea.ry with then. „i.. L.U. taj, .„ ^ opinion of „,e advocate, the attorney, a„d .,,;,,,, „„^ '"' lorke, and Norton, on the same subject in 1702. " ,^,0 The opinion of the. t.orney and solicitor .cn.ral. De (irey and W-iKs.on.hecUen.ionofaetsofparti,.mcn.to„.:.,,..,„:-^, '''' "" ■■"■■' ■''- ^--"7, as dominions of the en.wn i;,',; •>, . The„p,,i f ,„,^„^^ ^^_, Mici.or.cneral. R...vm„n.l, and f-ke, how far .he statute of monop..,c. extends t„ ,,[. ,..,„,,., .,,3 The opinion of the attorney general Vorko, .u 1727 how far ^ •Utute. extend to the Isle of Mau J- \ » k if'-- f ! t* XVI CONTENTS Page. The opinion of the attorney and solicitor-general, Yorke, and Wearg, on the extension of the laws of England to the colonies and other ;malogouH topiea of law. 915 The opinions of Northey, Rjde-, and Strange, on the discontin- uance of the American act of queen Ann. !^2 OF THE COLONIAL CONSTITUTIONS. First. Of the Governor. See the opinion of the Attorney-General Blenman, of Barbadops, in 172'.^ 233 The opinion of Mr. Thomas Reeye, on the same subject, in 1727-8. 237 Mr. West's opinion, in 1725, whether a Governor can vote as a Councillor. 238 Mr. West'.i opinion, in 1719, concerning a Govemoi's power to prorogue the assembly, under an adjournment. 239 The opinion oT the Attorney and Sol.citor-General, Trevor, and Ilawles, in 1700, on the determination of a Govern:r's commission. 243 The opinion of the Attorney and Solicitor General, Yorke, and Talbot, on tiio effect of notice on the validity of a governor's com- mission. 244 T!ic opinion of Mr. Thoma.^ Reeves, and Mr. Lutwyche, on the continue. icc iioM. wiuliur thiM'hange of the Governor would dit.'jolve the Assiinl.ly- 24? Tlic opinion of Mr. Hamilton, aa eminent lawyer of Po-: jsylvauia, on the (ianiG cubjcct. 258 CONTENTS jj^jj Mr. Fane's opinion on the nature of the bond to be.given by thf^'' Governor, of Proprietary Goverumen^ for observing the Act« of „, . 261 The op,n>on of th. Attorney and Solicitor GeneraK Trevor and nawlcs on the tr.al of a Lieutenant Governor, and other legal 262 Second. Of th-.- Council. The opiniou of the Attorney and Solicvor-General, Murray and Lloyd .„ ur.5, on the question whether the Governor and Council nave the j)uwei- of making laws. The opinion of ,he Attorncy-neneral Pratt, on the several powcs of the Co.noil and A.scn.l,l, of Mar, lanci. ,,,, Tho opinio,, of ,he Attorney and Sohcitor-General, Henley and ^ "\;;:;:::;;--^"'-'- - --^' '- --^- -^ -" 2G8 ll'^'J Or i„c HK,-n,>K.MT,vK As-^KMnr.v The opinion of tho At.ornoy.leneral Kayn.nd, on the King's powor to grant the privilege of ,aving an A-.,.n.Lly, and on th n^.. «.ven 1, ,he Kin, ., particular d.trie., to ..L dole;^ 200 ll.e opnuon of the Attorney a„d Soli,.i,or.(;,„„.,, Kyd.r and ''''"''' '" "-' '-"'^' '"■ "'-- f- '"'-.sing new representatives 'm TLe opinion of .he same lawyers, on th^ right of , he Crown to enable part.cu.ar town, ,o .end delegates to the A..e.nb,y. ' o,, Mr. Fane's opinion on the saaie point 273 Th.. opinion of the Attorney and Sol.itor.ieneral, Ryder and '.nir,i_\, on the same point Tl ■ . , 276 Theop.-nono. the Attorney and Folieitor-tkneral, Murray ..ul M'>.vd. on the privileges of ,he Jamaieu Assembly. ^ .,,., Thoopi,,,o,,of.hes,n„eWrs,whe r a per.o„ ehosen into ^^ ^> -W. .. ,. had a ngl,t to ait he having been eonveted of a crime The opinion .f ,|.e Attorney au. Sor ^it,„ (ieneral, Northcv, and W. o^t,how far a representative, aL.n.mg h.mself. may be pun- yo3 2U4 XVlll CONTENTS I* Page. Tlie opinion of the Attorney-General Pc Grey, wlietlier the As- sembly of South Carolina could grant money to the Jiill of Rights Society. 295 IV. SEVERAL OPINTONS ON THE ACT OF THE MARY- LAND ASSE.MBLY, 'FOR THE ESTABLISHMENT OF RELIGIOUS WOKSniP, ACCORDING TO THE CHURCH OF ENGLAND." The opinion of 3Ir. Hollyday. an eminent lawyer of Maryland, on this subject. 299 Sketches of an argnment on tlii.*! siibjrct. by Jlr. Daniil Dulany, one of the ablest lawyers, wliith Aniorica ever produced, after he had retired from the bar. 305 The Opinion on the same subject, by Jlr. William Paca, an emi- nent lawyer of Maryland- 320 V. OF THE WANT OF SOVEREIGNTY, IN THE GOV- ERNOR, THE COUNCIL, AND REPRESENTATIVE BODY, WHEN MET IN ASSEMBLY. The opitiion of the Attorney Giiienil Harcourt, on the impropri- ety of an act cf rcLOgnitiou of (jueeu Ann, by the Assembly of Maryland. 332 The opinion of the Solicitor Gi 'jrral Thomson on the limited effect of an act of naturaUlzatioii, by an Assembly. 333 The opinion of the Attorney G('iicral ^lurray, on the i|nostion whether an Assembly can impose a duty on the importation of con- victs into a colony. 333 Mr. Wont's opinion on tlit^ (l\l(■st^on, when the six months coin- menceJ wlicrein the Crown mitdit repeal llie acts it' the rcnnsylva- nia Ashjmbiy. 336 The opinion of the .Xttomey and Sulieitor General, Raymond aad - orke, relating to tiio timr v,hiri tiic tiirec years for the King's ap- proval or repeal nl the' M.i~sarhiisi tts acts commenced. 337 Tlioopininn of the .\tt(irne\ iieiiiral Nort'ity (f tlie bad effects of temporary acts of .\sseml:!y which in L.'-i j idgnicut could Only be remedied 1 y an act "t parliuuicnt. 33d CONTENTS XIX Pagt. e Theopinion of tl,o same lawyer, concerning the ilWa'ity of the ' Ipgislativo proceedings -: New Vnrl- ■ . i, '"^Sa-'ty ot the „, . ^ "" ^ "'^'^' »«=""«' 1^'Oard and Hutchica. 340 The o,„n,on .f ,he AUorncy and Soli..itor.GeneraI, Yorke and Td 0, o„ ,,, ,,^,,,„, ,.^ is.e.b.. Of Connecticut t^ .a.eW 341 ^_^Thc op,n,on of Mr. Lan.. on an .surpod A.e.bl, in South Caro- The opinion of Mr. Fane, on the same topic. If, TheopuHonot the Afforney and Solicitor-General Harconrt,n> Montague, on similar topics of incompetence. ' ''^'^•=°"'' ""'^ ^^^ be II;:::^:;;' '''^^^"--> «---^" ^-^hey, that care should The opinion of .he same I.wycr, on the unfi.ne.s.s of an ,ct of the ''^ Jan.a.a A.cnhly, as .con..ent .i,h the Queen, p^;^)!^'^ ,,, '"sZv^^u":^':'''''''''^^^^^ OK THE cox. bllTl ILJ AbM..MBLVS ACCUSTOMED POWERS As":r;::i:!r:^:^z^'ci^'^""'''^'''-^"--^ -ent ha. in the n.o.her coulry ^''"'' '' ^" "" °'' ^^^-^ The oi.iiiicii of the \ttni-,w,,- i e .• • .hoCn,wo.orp4' '^''■'''''^'' '''""'-'''■• '''■'^-^-t''- on The (jj,i].i. 1,1 uf .Mr We.t ,,i, .1 i r ' " ".««»-w,,„,..,,,,m/.::;:;,'i;;:"'-'^^' -^"-.-v 3G4 XX CONTENTS Pasc. 369 Mr. Fane's objections to an act of the tamf "ct, as unfit. The opinion of the Attorney-General Rawlin, Barbadoes, on the act of Assembly creating paper money. 373 The objections of the Attorney General Northey, to the same act ■ar .ing paper money. 382 The objection of the same lawyer to act of Barbadoes, as un- reasonable. 384 The report of Mr. West, in favor of a Jamaica act, upon general principles of colonial polic}'. 385 The AttorncyGeiicral, Northey's objection to Barbadoes acts, as unreasonable and unjust. 390 Mr. West's objections to an act of the .same Assembly, for licen- sing lawyers upon the same principle. 392 Mr: West's objections to an act of the South Carolina Assembly, incorporating Charlcstown, upon a new principle. 395 Tiie opinion of the Attorney and Solicitor-General, Yorko and Wearg, on the uncircumspect mode of continuing laws used by the Jamaica Assembly. 397 The Solicitor-General Kyre'.s objections to an act of the Jamaica Assembly, for its unrcnBonablencss. 401 The objections of the Attorney and Solicitor General, Ryder and Murray, to a law of North Carolina, as being contrary to reason, in- consistent witii the laws, and prejudicial to tliis kingdom. 402 Mr. Fane's observations an the Virginia Assembly, for relict of the College of William and Mary. 403 The objections of the Attorney General Northey, on some of the ■Virginia acts, in 1701. 405 The Solicitior General Ilarcourt's reports on 'he acts of the Ber- muda Assemblies, in 1090 9 1 93-'.i 1. 403 The same lawyer's report on t'lc .aets of the same Assembly, 1G98. 417 The same lawyer's report on the acts of the same Assembly, in 1704. 420 Jlr. West's objections to an act of tliC same Assembly, as it im- posed a duty on the importation of British manufactu'-es. 422 CONTENTS. XXI Page. The oljections of the same lawyer to Rimilnr I r .u ^ Assembly '•'wj.er, to similar laws of the same 423 )i: .'■:::!: "''■"""°"' °° - "' "' "= «'■""- ^-".%. - 425 Mr. -^V^est's obserTatfons ou the continuancp nf fl,. - of the Jamaica Assembly. *=^°*'""»"^« °f '''« revenue nets The observation., of the Attorney and Solieitor-GenerJ Ryder ^^^ and Murray, o„ theaetsof the Jamaica Assemblv, in 175.'. ' 43, Mr. We,.', "Wrvutionsonanactof the Virginia \ssemblv tending to prohibit the importation of couvict.s ' ^' ,,« mi , 4d6 rri 1 442 Ilia bservatioiis of the Snllr-ltn,. n 1 fbn V T . .-olicitor General, .hom.«on, on an art of 2:^"""°' ^-"■■'•'■'' '»■ ■'-- ..i..c:..f;,.:' l\i, 11-... ■' "*-■•-'"".)• 44(j i'loyiJ, .jiif,Mtrai'is„r til,..!.,,,.;,,, . ,1 ,,, -'"""J "'"I Y:;:;;::i::l""-y':"":^ "■'•'^■•" ^™«'"-n,.. .,.. „/°" .I'Mf ,,nu,t eourt,si„ .lamaica could not L.tMiLli ! I ; ., proposed, mode, but by the legislature of the inland ' ! parliament. ''"■ ^"^ 'O' an act of 458 i: ft ^itiiigt XXll CONTENT?. Page. I The opinion of the Attcmey and Solicitor-General 'Ryder an -l Murray, liow far an act ol Assembly ought to 'on of of the .san.e lawyer, on a sin.ilnr.subjoct in 170. -n. The opm.on of the Advocate-General Sir J ,1 /' «ame jurisdiction ' ' *^"''° ^''''^^' °" '''« maa. ■'|r. Fana. opinion on the Admiralty Jurisdiction, in the Baha 50-1 eor m ;ni— ■« iii^i Xxiv CONTENTS. Tlie AttorncyOeneral Northoy's observations on some acts of tlic Barlailucs Assoinhly, us iiicons;! opi:iiou, on the power of collecting admiralty due", Page. 507 510 in Uermuda. The oj iiiion o f the Attornov and Soiicitor-(Jenrr:il, Yorkc and Wearg, on the trial fur a inurc'er cnmmittcd at sea. TI lie oniiiinn I .f tlie .\dvocate, Attorney, and Sulicitcr-' ieneral, iu 17 li'i, on the same [mint. 525 The opi nion f the AttoiiiPV and Solicitor General of Barhadoc.", Cbiltim, and Kawlin, on the trial of pirate.s there. 327 Tl le oiiniin'.i nl till' Attorney and 8oiieitor (!.niei-al, Northey and Thompson, on the ]iardon of pirates, in the eoionit Tl le nifinion nf til,' Atl. rnev licni ra 1 Northry, on aj'p'al.s from the adnnriiltv rdinls, in till eolouies. 51 :li,' a'lMnr:ilty ii The (.i.min.i n| the Adv(H'atc<-!rneral, Sir Natiianiel I.loyd, on ' 532 th. ~;uni' snlijr. t The .\(h MMlrt;rner:d, Sir dchn Cooke's opinion, on the sri/nrn of a Spanish brigantinc, on the lotrli -ea, hy an unenmmis.sioucd vcs- «1. '-'^ ON lllK NAl'loNAI. FISIIKUIIN, The opinion ofthu AttorncyOeneral ItiyneMid, 'n th.' luads of a patent for c.irrying ou the fi.shory, in 1721. 533 Mr Kano'i* opinion on the duties on wuule tins. 535 The .\tlorney (Jeiieral Yorke's ojiinion, on the powcrof the ju.Hti- CCS of the peace in Newfoiiiidhind. 536 The »nme lawytr'8 opinion on the powers of the neverul officers at Nuwfoundlun"1 ' The opinion of the Attorney criminal court at NewtouuUland. but under the gre-it seal. CONTENTS. XXV f I The opinion of the .ame lawyer, in pursuance of the former, that the K,,-^' MK,y instruct his ^.ovcrnor of Ncwfouudland, to cause to be exectcd su.'h person, as uiight b,. convicted of capit,-.! crimes, ex- cept triMsiin. The opinion „f the Advocate, Attorney, and Solicitorfieneral, Ilav. Xort.u and Do (J.vy, i,„u far the King's power wa. limited at Ncuh.u.i.lh.nd, l_\ t!,,' statute of Fvin- William. 545 The opinion ,if the Afonicy and Solicitor General, Sawyer and Finch, on the Eastland and tucenland Companies. 545 ON COM.MKRClv The opinion of the Solicitor General Thompson, on the King's prerogutive of j rohibiting his subjects from going abroad. 54b Mr. WcMs opinion upon establishing liritLsh manufactures iu France. ^^^ ^The opinion of the Attorney GenerM Maedonald, how far the King may restrain his snl jocts from going .-broad. 554 The opinion of the Attorney General Yorkc . r-lating to English subjects being engag,,! m ll.e Kast India Company of Swe.Jen. 557 Mr. K.-MM- ..pinion ;,. to the ^ri/ing any marhinerv, which w.-re de.signe.l .0 be exp,„„.|, ,,mI «|„rb u.rc used ,n thc'Hnglish man ufaeturis. ,,., SCO i I.e r. pnrt of the v „.le ju.Iges upon the memorial of the African (-onipariy, touching iJ.e uwicnlo, m ICfJ. r.g, The opinion of the Attorney and Solicitor General, 'he by and bomer.«, on the Sprjuish trade in ihr \Ve>t fiHlies, 502 The opinion of the At>orneyandSo|K„or(;eneral, Trevor and ^ lla«It■^ on carrying logwood to Venice, whclher legal. -,03 J{. I ort of the Attorney (;„„eral. Nortloy. on preserving the ' ngJKs ol IJriiish built sl,i|,M J he opinion u. the .Solictor Generd Thomsou, on Spnnh.h «hips trading to the British islands * ,,„ ., „. . 566 i'l r. U e*t 8 opniioe. on the «amo subject 5gy 1 he o|iinioii of the .\llorncv Oennml V.,,il._. .1 , , V "••"urw Aorthcy, on the iniiMirtation Of naval storct from IJolhind. Thcopinion of tho Attorney .nd 8olicaor .J.neral, YorKoand ''' Woarg.ou the KHmo topiot. XKvi CONTENTS. The opinion of the Solicitor General '" ntague, on Irish ships carrying barley from RochelV'' to Lisbon, in 1703. 570 _ Mr. Fane's opir"on oa ihe carriage of Canary wines directly to the British plantations. 5iV The opinion of the Solicitor Genernl Eyre, on granting passes to ships, contrary to the act of navigation. 573 Mr. Fane's opinion on the King's seii-ing vessels, trading against law, in the Briti.sh I>lands. 574 The opinion of the Attorney General, Yorke, on the commence- ment of d'ties upon importation. 570 The opinion of the Attorney and SolioitorGenrrai, Kciiip and Smith, at Now York, on the distribution of forfeitures, uiidiT the acts of trade. 570 Tlio ti] iiiion of the Attorney (ioncral, Lrvinz, on the importation af painted stoneware. 579 Th(> opinion of Sir Williini Jones, Sir F. Winninaton, and Mr. J. King, ii ! )rt">, on tho statnti; 'Jl.li.s^ liovv far an attion v.ould lir, in lije Hariiadocs conits, fur seizing goods of tlie Atrican Company. 5S0 Tiic opinion of tiie Attorney (Jencral, iSawyer, in 1031, ooncern- ing intcrlo[iirM. 5Si Ttie opinion of tlio Attorney and Solicitor General, ITarcourt and Montajiuc, on tiu' cliaiig'.s cfl'ectcd, hy theimion, in trade. 5S2 The opinion of tlio S'llieitor (!< nerai, on the .\ni('ri<'an act estab- lishing tin' casi ot prize, diiring till' »ar of (^iii'cn .\nne. 5S5 Thi" o|iininn ot" tlir Solicitor (irniTal, Thomson, rtlatiiig to a duty laid, ill Cwolina. upon Kiili^h roninioditiiw. GSO The same lawyer's opinion on rjioosing a tnnsiircT of the factory at Li.slion. i'87 Tho opinion of the .\ttnrncv (itiicral, ll\der, upon ihccasc of di.s- tressed Krigii.sh soanicn at t'adiz. 588 Mr I' ii.i''^ o|iinion, on tlic priviii'i'i-s of tho Uussia eoinpany. car- ry inj! on a trad* Ui Armenia. 500 The opinion of tho Attorney and Solicitur (ieneral, Ryder and Strange, on the act of G .'orgi.!, ah'^ul trade with l! <' Inihann. 591 cormiTfTs. xxni Mr. West's opinion on .ome acts of Sonth Carolina for rcgnlatinf"^'' the trade with the Indians. * Mr West's opinion, relating to Custom Hou«e officers being con- cerned in trade and ghipping. 592 599 The report to the King, of tho Attorney and Solicitor-General, Northoy and 1 1.onipson, ... a proposed charter to a corporate body for insuring ships. The ..pinion of the Attorney-Goneral, Levinz. on the King's pow- er to gn.nt a patent for making black popper white. 009 The AUornoy.(iencual Norlhey'« opini , on foreign coin. 610 599 OF TFIE LAW OF NATIONS Th c opinion of Sir L.oline Junk Tl ns, on Captain Cook' s case. 10 .)[iini.)n of IVii-r,)rs K 611 les :ir.. t.i ho [ii nisiici in Kn.'l.ui.l ton and Lh.yd, how break, ri of trea»- Thi! opii.ioii of thi' sai (316 missions t.) tTiiizc iviii;uis, on t'lo ofTi'-icoof :i,i:.'iiiist tiji' K accepting com- ing s .•lilies. Tl "•"'''"' '■'!"■ Adv,H.,,te(;e„e,ul, C„„k upon I'lirluiral, in ITd.i. c, on making reprisals R lie "pini.iii .if tii,> .\tt^ 'V "''. upon til., pellll,,,, ,,f been taken l.j lli,. I),, 'rni'v Mii.l Soiieitor ( •'in.ril, X.rtlicy and iT.il nier.tiants, whose ships had rep.irt of .sever.! iatis on the scimro of Tl.itisl vcs.ods liy tl" S,,:i„i.-,r.I>, in ||„. We.-t In. lie ■ly A,ivacnte.()enoral. L.to. Simpson's opinl,,,,, „„ „„ , "f ""■'•">• "f^' ""eree«„|, |'i,..s.,a. ' "' Tlio Aii.o. ate (iciicril 1),- I'.,, I . .i i trad,ng«:.h Algiers. ' '''•'''' '"'"''^"'^"^ ''"--« T.,.^ .,,;nion of the Adv ^S Attorney, and Sol,e,t,>r (l.-ncrai, -.l,K..o,,, ••'•;•' Murray, 1,,,. f.ir .. Ivag.. .as, 1„,. ,.,,,. sp.ai,.h *'"•■'""'""-'•'••'-•'-" "•'-n,|,..l,nN„r,h,V„|.,„, ' TI.-T..i.on of „,.. A,torn..y and Sol....,„M;..„..al, V.irk ,nd '^■'"■"'■"■" ^'>— f"""^-'>"<"-..ral„v,,n,o..6 ' ,,■'''"■"'"■"'" '•' ■^'"— y«"d Solicitor General, Hy,,,, „.., Murray,.,,, the sanu'snljoct .>'<■., .nn.l CIS 1 1 1 9 C,2Q C21 G23 C25 625 III : i ii 11 • XXVIU CONTiiNTS. Page. The opinion of the Attorney and Solicitor, Norton, and De Grey, 628 on the snnie sulijcct. The oi.inioii of tin; Advocate General, Sir James Marriott, on the samt: subject. The opinion of the Attornry licnora) I'ratt, ' (lucstion whether Guadalouiie became, in ITr.'.i, a Ihitivli 1 • •.... 639 The opinion of the Solicitor (leiu-ral Yorke, on the same legal topics. Tiic opinion of the Attorney and Solicitor-Genera' Trevor and IlawK-s. how far Scot( hnieii wcr aliens, and how a Lieut^aut- Governor could be tried for misdemeanor. M3 Tlie opinion of the Attorney (icneral Northey, on the questions of alienage, and trading with her Majesty's tneiiiics. 615 The opinion of the Attornry General Norton, whether the French and Spaniards who remained in the ceded couutiies after the peace of 17»J3, were aliens or subj' cts. *«» Of the lei'il < ffeels, resulliiig from the acknowledged independ- ence of the Iniied State.-, by Gee Chalmers. G48 The opinion of Sir Lh'yd Kenton, in 1783, on the .piesticn,, whetiicr the goods imported from the ('nil.'d States must pay alien duties, and arc subject to the regulations of tlie acts of navigation. 088 The opinion of 'ir William Wynne, in wliieh tlie .\:t( rney, and Solicitor-tJencral, Ardenand Maedonabl, concurre.l on the state of AmiTican ships, after tlie iiidep, ndeiiee .f the VmuA State.-. • 090 The opinion of the Aitormy General, Ardeii, in i;-o, outho .1 G91 American trade. Di.,cu.ssions.M, the ,,,n-stion, "whether l„hablt,,nt> of Ihe United States, born th.Mv before the independence, arc, on comii.g tn tins kiniidom (o be loiiMJcrcd as natural born subjects V % a liar- . 692 rister. Surinam,— diucourso of, b^ Mr. J l>c ^\ itl. *'» PREFACE. Ma NV years of ajjitation and rovolntion have elapsed, since it oceiirred to me, that the Laws of Eiijrland were hi)n relate to our (.'olonies, Fish eoinnientaries on the •en on such le_L:,iil topics as eries and Conunerce. The commentator was, prohi.hly, nnal.le to ohtuin materials; as the appeals from our forei<;ii dominions lav to the King in his Council, and n(.t to \\\o Ki„^ ja hj.^ Bench. There have heeii scarcely any reports of cast's which were decided on skIi appeals, and Wi>re •ic.-essihK. to research; hut, if such app.'als haparent, that such documents, lying ficparateil in different depositories, and oltscured by meaner matters, were ol' \cr\ little value, iind of less instr"ction to the (Joveniors. as tliey li;id al- ways be(>n to tlie goMTued : the \ fry l)ep;i'-tment.'< of State, which |M)ssesse(l such unknown trciisnres, could neither be much wiser lor tb^ir iii'con-cioii.s possession, nor in am inauuei' rcguhited in tlieii' pnic- lice by unknown preceilerns : ■■ lili in i \t iimi t-s-st' ct non, iij>/iiin !•( " WMs !i niii\ini \ery iijiplic;dile to (he statesmen who Idled those depiirtinciit-. and could not pursue aiiv settled jx'lii'v, by tiiose oeat iis wliicli had PREFACE. liiihtod their predecessors on thei: official course. Owiii- to all tliose considerations, T have been induced, at the end of ni=iny years, to give publicity to those juridical opinit)ns, in the hop-i of doing some good by their ])ublicatioii, while no object of any use can be gained by their ro-i<-eaIinent, Those opinions will do honor to rlie huvyiTs who gave them, not only as thoy • lisplav a ])erllM't koowledge of the several subjects, but evince a deliberation aixl candor, which are equal to (lieir skdl. Tiiose opinions Avere often given, after seeing agents and hearing counsel, and sometimes de- livere.l witii many (pialifications. when the cases were either imperfectly stated, or the facts uncircun.stan- tially understood. ()„ perusing the following opinions, the moi-e judi.'ious loader will be ai)t to cry out : No country enjoys such a college of civilians, as the Pre- vogative Court supplies-noither (Jreece nor Rome, iu tlieir best days, p-o,luced such municipal lawyers as liave illuminated i is nati..n b\ their learning; ani- '""^-1 the peopk. hy their elocp.ence ; and dignified then- prolcsHon by tlieir probity. •t 1'^'^ iH-cn my endeavor to arrang,,- the followin-^ -1"-"""^ a.vonling to nu limitc-d notions of a jusl ""'"-^■' '""'• "'"'» i' i^ reroll..,,.,!, „„t „, .,,,,t a .)'"-( MS Sir .Matthew ib-d... a..knowledir.d his i„a- '"'"> •" '••■•'"'•'• I'i-^ ''nalysis of (he law to ;,„ .,,,t I"ui<'.il rrirtb.wl ,.,..1.,.,.;,,,, ,.,, , , ^'"-^ "'^'^' perhaps, tJiiuk with less sevrniy of my uuskillfulness. m ^' (, 4 PREFACE. This multifarious sulyect may be properly digested imder the foUowiiif^ 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 over conquests ;( 3.) the King's Grants; (4.) An anom- alous exclusion of the King's Prerogative, in the appointment to one office. SecomUtj^ Of the King's General Jurisdiction abroad. 21iir- established, in KiSO, the Kings ancient jmisdiction •1*3 Ch. I, eh. 10; 1 JJlacks. C'uiu. -30, -31, tSec ,1,.. s..vor,aI act. iu .Scobbdl, win.h are tl.c prototypes of tb„ acts 1)1 iiavigutioii i-ti m ■ t" m 1 I i.' 6 PREFACE. over the trans-atlantic colonies was restored, with the King's government. But the plantations had now, hy many accessions, grown into bulk : and tlie King's superintendence became still more necessary and fre- quent, for preserving the sovereignty of the C-rown, and the subordination of the colonies. A Council of Trade and Plant.itions was now establi.>side at such a Board, it became exceed- ingly adva.-tageous to the State, by investigating colo- nial titles and complaints, by assisting negotiators with their informati.ms and advices, in additi.m to the •Tlie plan of the Bo.nrd of Trade, during the rei'^r. of King Wil- Lam and Queen Anne, seems to have been, to appoint two noblemen and eight commoners, as Commissioners for executing the two great objects of the con>mission-tl,o promoting of trade and the superin- te..d,ng of tho plantations. The members of the flrst Board were ■ John, Karl of Bridg, water; Ford, Earl of Tankerville; Sir Philip Meadows who wrote ' Ob.servatiors concerning the Sovereignty of the Seas; A\ .ll.am Blai.hwajt, who had beon Secretary of '..e Oi > Council of Tra.le and Plantations, a.ul ,"ed Auditor of colonial rev^ onuo; John Paloxfen, the Chiof Justice's brother, and a n.erchant m the nty, who pubii,shod a tract on Trade; tho well known John Locke who wn,to on the coinage; Abraha,, ]1,11, whose collections on trade and coh,nios are in the Bri.i.h X ,.oum ; and John Me- tln.en, who, from IG'.iO represented the Dev.z s in Parlian„.nt • he was sent to Portugal, as Amba.ssador Extrao- .inarv, f.r the .pe^iat r'7'' ":'":'" "^ """'■""'■'''• '^-"- -"'-i <•- .,,1. of dL;,; tJcr, I/O.,: li,. di, (1 about the war ' ,", Tl. , n i em j ■'■^'^ '•^- ^ "*-' Board of Trade iTa» a proper nursery of such minister. i> 'i -4 IF il' 8 PREFACE. usual occupations of such a department. The first com- mission specially rcuommendod to the attention of the Board, one of iho most diflicult of subjects — the poor, the poor-rates, the ]ioor laws ; a subject of such compli- cation, as balHod tlie united labors of the ten Commis- sioners, and seems to defy *^lie wisdom of Parliament. It was probably intended, that the Board of Trade should h(i\o power to administer an oath : and the Solicitor-deneral. Tliompson, gave his opinion to this eft'ect : 8iR : Tn obedience to the commands of the Lords Couuiiissioners f^r Trade and Plantations, signified by yours of the -Itli instant, I am of opinion, that the clause in the (Mtinmission. wliich is under the Great Seal, does cnijtower thv Cominissioners. or any three of them, to ;i(biiinister r.u oath to witnesses, who .shall come bi fore thrin to be exaniined, toii''!iing any mat- ter uieiitiiiiicd ill tb(^ eoiumission to which that power does ri'late. 1 am, >S:e., ""Vin. Pojiple. I>(|. Wm. Thompson. February C 17 P. '-20. 15\- a sj)riial clause of tln^ lirst connnission, the l)oai(l \sas ciiiiiowcrtd to call for the advice and aid of tbe Attorney and .'>olicitor-(ienerai.* The following ()|iiiiions will sliow. tliat soon alter tbe revohition, the Miiiistiy called upon the Lord Chief Justice llolt, for • Tlic law iilUfcrs WI.TC cacli ullnwc^l a HtatiJing fee of a hundred guiiirnK, willi ti'ii j^uiiinah tn imli of tlioir c'l«rk». PREFACE. 9 his advice ; but he dops 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 a.9nento trade, though it must have been the magni- tude of the object, more than its ditticulty, which re- quired ."^uch mighty knowledge i the lights of West- minster Hall enjo;yed, tf> see that such a trade with the Spanish colonies, in Spanish ships, wtis inconsist- ent with the acts of navigation. When treaties of counnerce were in cijntemplation, during the year 1709, the Board of Trade was em- pcwered to call in the aid of the King's Advocate- General. The followiug opinions show several instances -"■ - joint advice of the Advocate, the Attorney and Solicit .--General, which was asked and received, by the King's ministers : what other country can boast of Jm-ists, with such .y.i_ut of knowledge, and reach of thought, as such joii.> a(ivice exhibits! Soon after the accos-nn of George I. the acn of the Colonial As.semblies, winch were to be reviewed, l)«came extremely voluminous ; the standing fee of a hundred guineas had cea.sed to be any ot)ject to the At- torney and Solicitor-Genn-nl : and i( be.>.nne njiparent, that advice wa.s at length asked on particular Inisiness' of such magnitude, av. a fee of an luni.h-e.l guineas was quite unequal to the aftairs and i ,.-ome of " e law- officers of the crown, fro- - other sources. " . the progre.ss of business led ou to the special appointment r 'if -1 H'J' m 10 PREFACE. of one of the King's learned counsel, to attend to the law alVairs of this Colonial Department. The first connsel, Avho was thus assiirned to thr Boai'd of Trade, in A[)ril 17 IS, was Uiilianl West, who had distinmiished hiinsell". hv juiliiishinu' ■ \\\ In- qnir\ into the Tnainier of ereatinii' IVer-^ : " and repre- sented, in l*arlianient. siiecessivtd\ , (Ir.iuipiuind and liodniin. He was allowed a special s;d;n\ of tinee hiuidred pounds a \eai-. Tiie Advocate, tlic Attorney and Solicitor-General, continued to he considlcd >in [)articular occasions, and were ]iaid tiie accustm nl fee.-; for such ap[)lications. In June i7-!> .Mr Wi-i was appointed ('hanceijor of Ireland: liut he mdiappily ^•'•i\ at Dulihn. in Deceiulier 17-ii; lea\iuL^a sou, who distinirnished himself as tlie correspondent and friend of r.ray the poet. Kr.incis Fa?ie. of flif Inner Teiupie. a rdatioj of t!i', Karl of W c-;tmor!aii(l. the President of iln' Uo:iii| of Tiadi' w;is iinme(li;itel\ appoiiitrd. a^ the ucce^^or of Mr \\'est in .lull" I7"J"' lie i mdi miicd lonprc-enl in Parliaiii' lit, either Taunton i>y l'clci-.(i,.ld ; und to a( t as h-anieil eouri-ei to this e-tahli>liiii(iil which rcipiireii () much leyal assi-taiKr. till Novriuln. 1740, when he wa:< appointcil m mcnihi-r of the rmMid. .M'tcr tlii> loiiir s''i\ ice. ||(> was iiumcdiateh- --iic- cecdcd I)v Matthew Laiiih the lepre-eniai iv e mi Par- liament for Stockhrid;.'*'. lie w as created a Uaronet in .Fanuar\ ITi), and he continued a rcprc-enlat iv c in Parliament for Pet4T!M)rough, as well a- the le.iiiicd PREFACE. 11 cuunsil tn tlie lioard of Trade, till liis decease, on tl 10 Titii oT .\()\-('iiil)er, iTticS : 1 lis son, Sir Penist on, was ercatt'd a peer of Ireland, on the 2d of May. 1770. ll IS uniie('essar\- to t"ll wlio were the li iw otlicers of the Crouii that ave special opinions to the Board AS hill' .Mr. Kane and Sir Matthew T.anih acted as l \vf cotnisrllois to tiiai estal.lishiiient : lii iloni -cell >iicli a sue cession <>t world has sel- Jm-ists, whether "i- re- paid \\\r\v know led (-e. their temper or their intej;iitv. At a >('i;. ciilicaj iiioiiieiit of colonial aflairs, this important ofhce of hiw ad\ iser to tiie j; ,;ird of Trade remained undisposed of (hn'in^- sescral year of i;reat colonial pcitniliation iTTt'. Kichard .lacks at len'ith, on tli e ;;i»th of April, Ol I. one of tile Kintr s i earner nunstd w i«s appointed lo this trnsf. whi.di tii is accoinpiisheil 1: \\\fr \er\ M 'lli'ienlly diMd.ar-ed till the al.olili 'I" ;he l^i.ard. ,it tl le '•anie epo(di W revolted Culunio aekiiowledired to lU tl on liK h s.iw thirteen e sovereiun States. le -anie st.itesi nan, who ad\ i.- 'd-nient. .Ml- .l;,,ks 'I I lie 'i"le,isin\ . t that ackiiowl- "11 was ap|iointed a Commissioner loiiLili lii> 'V<'nt the fdl (,f ll le minister, who inuitili<-d ih natiuii 111- prejiidiceH. nnd injured it l,\ his i iro- .|«'<'l-<. .Ml .l.iek-ni, .l,,.,! nil tile till, l<'avin;r il very ample tortmie t.. Jiis , M; wo si^f(«rH. At the till III- i|e.c;|s,. le.iilled iMiiil-el a liielnlier of l';,|- le W,i> one of the Kinjr'; ini.-iit and a fid! "W ol Ih. ioi\ a I J 111 Aiithpiary SiKMetic'. vHl i -W M ■i.! .- 'Ill i ' ■•! ^1 .J i i. 12 PREFACE. The first shock which the Board of Tnule had to sustain, was givoii by the inconsiderate hand of the Earl of SlioUnu-ne, when he was appointed Secretary of State, on the 2od of May, 17GG. The correspond- ence and the patronage which the Board had long enjoyed, was now resumed, and they were intbrmed, Ironi authority, tliat tiic Connnissioners were, in fu- ture, to act as a h. ard of advice and counsel upon such i)oiiits oidy as should be referred from the Privy Council or Sccretaiy of State.'* The authorit\ of Parliament had been recently shaken by the repeal of the Stamp Act, and the (Commission for plantation affairs, w hicb had iiuowledge and experience and en- ergy, was thus reduced to a l)oard of reference. \\ hen the repeal before mentioned did not procure ac(piie>cence, and the siiiM-k which had been given to tlie Boar au.l mu. I, b|, Ished, only led en to ti ,t ;,vowe,| i.cknowh.,lgm,.ut of real sovereign, ty, whi.d, u:,< t,nlily giveu iu I7SL'. At the same epoch, the statesman u hn... ebupa-nee and edorts had so em,.avinus|y .•uutribut.Ml to ,|,a, event, Mn.ved for the law whi,d, ab„|,.hed the Hoard of T.;,de.* Urd Shelbunie. as Se..retarv of State, agan, held theomi- "<"'- IH'U uhieb, on ,h,. LM of AuuT^t, ITS"' .-ven "-'"- '-Hi.-v the Aet had pa.sed, unuueated to tl..- several meinb-r. of ,he ( ^n.mi^.H.u, th. deadlv *"''"-^' "'•" "'•■ '-"^ '-' '- lur.her a.on lor ''"'"■• """'•"^'' "'-""".-iMl services; vet a pea ..was still fll III. |M!!i> -v't. -! 1 1 '■'■" ''"" '"*-• L mi. -d states, with Franco. •S'iG.o III ch. f>'2. m 14 PREFACE. «. witli Sjiain and witli Holland. Lord Shelbnrne lived to hvav in Purliiunent. that the peace of 178:) was un- 8atisl!ictoi-\-. Ae(|iiiesc('iiee in what cannot be remedied, is one of h' u'.cal luonils wliicli nations u\ then' progress th have to praciicc. After all those events, domestic and foreign, it \v:m sii|)posed hy some, that the whole busi- ness of the late Hoard of Trade had devolved ipon the Secretary of State ; hut the Secretarv for the colonies had lieen abolished by the same stroke of law that had dis.solved, nntimely, the Board's commission; and the devolution exclusively fell upim the Privy ("ouncil. as the Kiuii's Staudinp; Council from ancient times; it acmrdinj^ly acteil for scvera' yeai-s, in sonu> ditlifult ([Ucstions. while the old trade and new habits v»f the I iiitcd States were to be re. though undtM' the late act of Par- liament ' delilieiat ion and ad\ ice did noi belong to an ollii-e which, iiiiik'r that statute, was merely ministe- rial fur tran-iiii->iun, rather than Ibr counsel. li.- recollertril ] mtIi.I 1 1>^. thiit tile U'lard o|' Trade (lid en- joy the in>trncf i\c aid of a ieanied |ter^on. but he thil nnl kniiw |iinl);ib|\ . b\ what authority and for what iiiu'iiiise sueh ;\\f '>l!ieer had lieeii Miiiiiinit'.'d li\ thv •22O00 III Ch r-2. 'I a Kinin A 1 a coun- ssenil»i\- were. of course, coi'dt)) unn jiidi Ci' and it was a measure of retardation rather than furtherance, towards ultimat< completion l.y the King's consent thus, the appointment of such a 1, or apj)roliatioii iw oflicer. the adv lee su.li an oflicer, and tlie f ees of such an oil when deman ed of private parties f.r private act- such icer a.s tl (lemaiKl \n recompense |ur incompetent ad vice uis connii non j,ufic<\ must he d eemcd unollicial and unconstitutional. The law, as we learn from Sir Kd- ward Cok( icovvls on new o(h( somethin;,^ is demanded lor nothin; scowls at e\i'r\- act I cspecialh wlun The I'arl laUH'Mf >\ winch monev iH'r rai.«ed on the .^-ul.ject, witliout • 'itlier \irtuallv IS, in an\ man- some sort 'I- directU, in I' iil\ I- iii'liament oi' as.'-ent, ^em- very ui.iu, ever\ woman ant >\vl at I ''ver\ chini must CCS wlmdi ari il<>maiidcd for ser\ ice, '"" '■"•• '"•"Iran.-. Wl,..,, Sir I'lnlip Vn.ke, (he At- '•""••■^ '••■•'"''''. WMs consclf..,! ,|,.,„ „ ,„„i^^i„_, ,,, I ! .1 .. 1 ,111 ijii I ii ii ji ica 1 iiiii"- l--,nt XculiMiudland. like . .,„,, I.uvcrand '"""• '"• '•'■'••'' ""», l»c hoped no cuHinns.i.,, .v.=,..4 111 16 PREFACE. be given for sucli a purpose, Avithout some sort of as- sent by those who were to \)ii\ the tax." At length in August. 178(1. a committee of Pri>y Counselkirs, like the analogous coniijiittee of ]074, was appointed, bv the derlaration of his Majesty in his Council, for the consideration of all matters re- lating to trade and loreigii ])lantations, with a Chair- man, and Vice-Chairman and suitable oilicers. When this conmiittee was apjtointed. the act of the 22d of the same King* attached upcm it. as it had enacted, thnt the business theretofore done by the Board of Trade, should be t'xecuted by a connnittee of Pr'vy Council, with nil tlu' authorities, ])owers ajid jurisdic- tions, given and enj<>yey the Kim:'s ultimate de- cision. When t I' Bdiird <>f 'i'rade was abolished, the Commissicmers left iirliind tin in \.i-t niannsi'ii|it col- lections, which are (if far nmrf v.din' to the King and nation, than all the moiicx that had Immmi paid to them in the nature of a salary, with a penurious spirit •22 Geo. III. Oh. 82. PKElAcfc;. 17 and a tardy hand ; yet, it nni.st bo alio\vc',l. that the vahic of puch collections must be lira-'+.-d, l)v the use which is made of them for the jjublic benefit. From those manuscript collections chieri\ , as I have already intimated, the following opinions were tran- scribed, when researches were made for minor mat- ters ; and from them is now published, Ji;r the first time, the opinion of the Attorney and Solicitor-Gen- eral, Sir Philip Yorke and Sir Clement AVearg, which was mentioned with so nmch approl)ation by Lord Mansfield, when delivering the judgment of the Court of Kings Bench, in the case of Campbell and Hall, when his Lordship, considered this opini,)ii as authority which had not ))een answered, tliou-h two such great names had coiisideiable weight. Such opinions, when given to the King. „i- his Councils, by the law ofHcers of the Crowu. who are bound b\ their duties, to give their .sentiments niid advice aecordin..- to their skill and knowledge n,ay be deemed of little less authority tlian decided hiw : and the foilnwiug opinions are published with the well uuv.uiug hope o^f' contributing somewhat to the useful stn.k of juri.liral knowledge which the profe sion and tbe pc.ple eujov, as the .safest shield of private rigiits ; as tbi' noblest I'.dladium of the public good i,, sueli an euipire as ours; wiio.se interest, and who.se priih' it is, (,, !„■ .rov- criied bv law. tX ! ' 1 pfTT- I Ji KETCHES OF THE EMIIEJVT LAWYERS, WHOSE OPINIONS AUE GIVEN CO THK PUBLIC IN THIS WORK. 3. />/: Krfo/i, of tl K'fU. " Maritime Dio(X'ol()/.. IJoi/J. of tli(> C '"). ^h' Lioiid Jrukiii.'^, was ! in 1020 and 1 amidst vicissitudes and ommons : flourished 1G77. ganshire, •mmoiis, rose ><)rn in Glamor lavm^- entered Doctor's C I'l Volutions, tlirou^di everv ■ Sn- W >lh, nil Jains-, wi,,, »•„, 'i' fIS' 11 i'l 20 LEVINZ, SAWYER, FINCH, HOLT, Inn in IHTl, was cnnstitutci Solicitor-General in No- vember 1G7B: and Attorney-General in January ir)T4-5. 7. Sir Cre-nveV Levinz. who was Treasurer of Gray "h Inn in 107'.>, ,>iicree(le(l Sir W. Jones as Attorney-Gen- eral iluriui:; the same year. Hia " Repoi Is," w'-.l.-h were praisiil by Lord Manslield, were published in 1702; and these weie r-oon followed by his "Entries." There is a gentleness in his opinions, as Attoiney-Gei'.eral. which (loos him high honor, during .,.i age of little scrupulosity. Jle was ere ted Sergeant on the 29th of Novend)er. 1681 . 8. Sir liohert Sanujer Avas appointed Attorney-Gen- eral on tlie 14th of February 1080-1, and again, on the 7th of February 1G84-5. He died in 1092. 0. Ht)ua, lie was ai)pointed t(j the high ollice of Chief Justice of file King's Bench; and in March 1709, he fip.i-'ird !n- ;i<'/>?/ was appointed the Recorder of London, in 1080 ; Solicitor-General, the 4th of March "088- 'J; Attorney -General, on the 7th of May. 1G89 ; Ohief-Justico of thj Connaon Pleas, on the 30th of April ir»92; and dyinj,^ in 1701, was succjeded by Sir Thoma,^ Tivvor on the 0th of July 1701. 13. S/r Jnlnt Vomers was born at Worcester in 1052;. was educated at Trinity College, Oxford, whence he re- moved t.- the Middle Temple; he succeeded Treby as Solicitor-General on the 7th of May 1089, and as Attor- ney-General on the '2J of May L,l)2 ; in 1093 he was appf)iiited Ltrd-Keeper of the Great Seal; and in 1097. was cieated Lord Chancellor, with the title of Lord Sonicr^'. r,ut (m the 21st of May 1700, he was .super- seded, Athen Sir Nathan Wright was appointed Lord- Keeper. Lord Somers was, in 1708, ai)pointed President nf the Council, which office he resigned in 1710. He. died III 1710. after surviving the pow-. •>f his mind. He appears to jiavi- bocn a collector of t,.._is during an age when such lore abounded His judgment "n!!ed Atton.ey-Gene.r' assu.ressor to Somers. on the 4th ..f .Vpril 1(;!)3. He .vas made Chief Baron ..f the Lxchequer, on the K^th of June IGOo. and he ,bo^ :i|i ^U4 T 22 TREVOR, nAWI.ES, COMPTON. probably, in November 1714, wlien Sir Sumr.ol Dodd succeeded him. 10. Sir llioma.^ Tirrnv was appointed Soliritdr-Con- eral on the 2d of May 1G92 ; and Attorney-General on the 10th of June 169o. He was made Chid-Justiee of the Comnum Plea.s (m the .3th of Ji dy ITIM; lie soon after acquired the peerage ; and died, probaMy. in (>cto- ber 171-1, when he was succeeded by Sir Peter Kiiig, as Chief-Justice of the ComuKm Pleas. 16. *S'//- John Hairle-^ was appointed Solieitor-OeniTal on the 13th of July, 1095 ; and proi)ably die;l in 1702, as Sir Simon Harc()urt succeeded him in tjiat oiliee, (m the 1st of June, 1702. In KiSO. S'r Joini Ilawles publi.xhed his popular tracts on Enuiishmens ri-hts. During the same age of agit.itions. he published his re- marks on some State trials. He also published, in KIS!), a reply to Sir Hartliolemew Shower, in bis eon.troveivy with Sir Kobert Atkins on Lord llu^seirs innocence. "^'.le Stat. i)ai)ers whieli hav since been ]iubli-licd. have decided the points that were thru in controversv. 17. ILitr;/ Coiiiptoii. the son ot' tiic first Karl of Northampton, was born in 10:12, and rdiica d at Qiuvirs College. Oxford. Mv was created i;i>bo|) of ( )xf,,rd, 1G71; and in the sulxiMpien* year, w-^ tiansjutru to London. lie had the honor to clucatr ihc two prin- ces.st'.s, Mary and Anne. II,. lirmly ,,|,],o-,.,| the ilb-gal innovations of .Janirs II. I,y <1.. lying tbr |u.i>."ciilion-r„f power. .\t til,, i-ve of tiie ivv,>bit.o,,. ;, r^uA^u■\■^ (be Prmce.ss Ar.ne to Nottiiigliam, lo picveiit ber being con- veyed to France. He bad tli.. au('ceed Sir John Holt, as Chief-Justice of England, on the Kith of March 171(». He became Chancellor on the VJth of May 1718; and was created Earl of Macclesfield, on the 5th of Novend)er 1721. His fall was as liipid iis his ri.-^e. He was accused, in Parliament, of some coi'nip- tion in the sale of oHices in Chancery ; he resigned his hiirh stati«mon the l!4th of Janunrv 17-1 ; he was found guilty by his peers, and was lined thirty thousand pounds. He died on the 2Sth of April \~'.V2. 20. S/r /\t(r Khuj. from vt'ry dilVerent studies, he- came a student of iIk- Middle Teui])le. He \vii< chosen Recorder of Eoudon in I7"S, and was apjxHnted Chief- Ji'stice of the Cnminou I'li-as. on tin- "-^''tli of Octuhcr 1714. He was made f.nni-Krcp.T (Hi the 1-t of Jui le 172 ill am an( 1 15; iron oi resiiiu this lii; 1 on the 27th of June 1727. l-i'i-d CliaiKellor Ockliam His iidirniities indui'ed liim to ■li ofTicf. and he dieil on the 22il of Juh- 17;'.4, aire( 1 g: ^//• fhtniis Mniiti iilti was appointed Sdlicitoi'- (ieueral in April 1707, Attorncvdeiieral in Octoln-r 17ioncr- I'M- tl xcrliMlL; i>t lie was ap- tlie (ircat Seal ; on the llli of Mav 17: |Miint«'d ( 'luff l>aron , mikI hi- dud on the 2it(il>cr 1723. 2S Si, lii-l'tit K'ii- wa.s iippi>inted Solicitor-licneral inOfUtlxT 17ll'"^ , \Vii> madt one of the Justn cs mI the King's lieneh, m May 171''. He waw raiKt'd to l>e Lord STHAHAN, RAYMOND. ALAM 25 Chief-Justice of the Cnnmion PI uarv 17-5(i. eas, and he died in Jan- 2!). Docior William Stvahan of the C R i\m oinmons. He omat's Civil L,iw. was republished in 1737. was the Son of Sir Thomas lond, one of the .Tnstiees of tlie Kiuir's Bench, who published in 1722. a translation of D in tv.'o vojiinies folio, which '50. im(tii Justices of tlie K January Kn-rland. on (he 2Sth of Fel iuii's Bench in of Macclesfield 172:-), and was advanced to be Chief-Justice of ruarv 172! On (he Karl le was appointed, with Sir s recession. 1 Joseph Jekvl and Sir Cieoffrey Gilbert, a ( of (lie (ireat Seal, on (he 7tli of J, Holicrt Hayiiiond was created a a I unnnssioner iiniarv 1721. iia ly 17:50-1. IK- ,ii(>d peer on the 2lst of J oir an- '" ih.' Illtli of M.u-cli n.i;}. By Xortheys .laufrhter, he left a son, wli.. d \ II •>:>. th Kt e |)eeraire became evtiiiet. i. IK m port s and Kii( OIK l>a\riionds death, and have been of( ries \v(>re publishe(| X^nv^ afier I \\9, tor: • Ml repiiblisher "\ eveial edi- ■SVr JitJni /■'•nit .\h,i„l in .March |(,7((, d. ii>^ born ill Loud on, oaii'ditcr o A I f< e son of KdiiK.nd Korte^ciie ;iih| >arah '"•1 .'f WaterfonI IlcchuM. the law "• I'l^ prole..„„i, and was called to || I Her Temple Socict\ II le bar b\ the |, <• wa-^ appoiiileil (lie SoIici(,„-- "•"•••■^'1 '" ITI-.; and beuasmadea Banai ..f the Kx- '■'"■'l'"-'- '" •''"Hiary 171.1 |„ Ma^ 17 Is l,c w ,. ap- '"•■>"'■'' ""eof the Justices of the Kne^. Mend, and 'H January 172S he was removed t,. , be ( 'our, of (,.„,. ' '*'''"^ "••••••'• "'i-MedM, theperlonnanc, nf„ v.-ry nuportunt (rust, (dl tiu. 2.;,h of .hu.. 17 |,; .vh... r:{r ill ril m .n»^ irt iiti i as THOMSON, WEST, FANE, GIURON. (1 he was created an Irish peer, by the title of Lord For- tescue of Credan, in tlio 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 Decem- ber 1740 ; and k-avin;r his second and only surviviTig son, Donner, who died in 17S1, withont issue, wherehv the titk' became extinct. Sir John i)atronized Klstoli the Saxon scholar, whom lie encouraged tc publish, witii corrections and eidargements, the Saxons Law.s appears to have republished in I7U, and in 1719, the Lord Chancellor Forte.^cue's work on tiie difl'erence between an absolute anter King aa Recorder of London in 1714; was ap]»ointe-igue/r/.v. of New York. o7. Mr. W'illnun /A/w/Z/o//. of Pi,ila,lelphiii. .'5S. The Attorney-Cieneral AV, /,///„//, o!' Barbadoes. ••!'• The .Vttorney-Cleneral /.Vz/rZ/y/.v, „f Barhadoes 4l». The Clncf-.Fusti.v h\ //. JA.yr/.v, „f X,.w Jersey. 41. The ,\ttorney-(]eM,.raW7,/^o//, of Barl,a(hH>.s. 42. Sir Chm.Nf W,.,,:, u;.. appointed Soiiritor-(ien- '••■'' "" ^'"' •"' -'' I'.'I'nury 1 72.1, and .lied in April 172(i ^^"•'^ •^^^"'"''^' "•'dinned hii.i, in the ca.M. of CanmheU "lid Hall, as 11 Iiiuvrr ofg-ca' i ,iiie. l;> .Vr I'lnhp y,,d, uMs hnni at Dover in lOVO Si.rh Nvas his grnius and diligence. tli..t li.- .jui.klv rose ' ■••'^''•-'»lr.^'">-"..d a great nun. dnnugan'age of Warned lawyers -,..1 considerable men. He sncceed-^l 28 TALBOT. REEVE, LUTWVCHE, WILLES. Sir William Thomson as Solicitor-General in March 1719 ; he was appointed Attorney-General in Jannary lr2?>, and Chiei-Justice of Enjjland in October 1733, when two thousand pounds a year was added to the sal- ary of that office, which requires independence and sufli- ciency. The (Jreat 8eal was delivered to him on the 14th of February 1737. whirl, he held for nineteen years with universal applause. He resi^med it in Novem- ■ »»er i7:'(i. amidst the convulsions and --grets of his country. 14. r//.///..v Ta//>af. the son of William, Bishop of Durham, who died in 1730. w:,s appointed Solicitor- (ieu.'ral on the death ,.C Sir Clean nt Wearg. in April 1720; aiul was constituted Lord Chancellor, and cre- ated Lnrd Talbot in J733. He died in 1737, at the premature age of (ilty-one, having previously lost hi.s •sou, who was deplori-d in the pathetic strains of Tlxmi- son. 1). >//■ 'I'lHnim.s h',,r, wiis appoint, -d a Justice of the ( omu.ou Pleas in February 1733, and in Jamiary 173(1, Chiel-.Fusti.eul' the same ("ourt ; and he died in I737! leaving lustriictiuus tu his Nephew for the Study of th" Law, which were pul»iished i,, the Co(l,r(a,ua Jun,/ua, vol. ii. 7'.' "nt,(.s Lni,r»frh< who was. i)robal)ly. the s..m of Sir KMwanl Lulvvyche. died on the iSth of November 1731. nue nithe Kin-s Cumsel. He entered the Hou.se 'JlCnmmons ui I7I(». au.i c.aitinued to sit in if till his decease, u Jieii he sat fbr \mersham. 47. Sir Jnin, MV/A.v. whil, ;, .tudeiil at All-S,,ul,s Colleg... icame Solicitor-General in Oeceniber 17:5:5, on tiie proMiofi.pti of Mr. Talbot, ;ind Attoniey-General in Jaiuiary I7:i7. and CIik f-Justice of Enghuid, on the death of Sir William Lee, in April I7r)4. He died on the L'oth of .\pril I7"):l. He was tu have waited upon his Majesty the .!,iy before, on ac- count of his bring crcat,.! a p,vr. by'thc title of Lord Ryder of Harrowby, LincolnshJnv but bis indisposition prevented his having that honor, whi.-h h.. ha. I merited by his talents and ser. ices. •'<». Sir. I,, In, Sfni,,./, b, ,une S-.li.-itor-General on the "••"'""i"" "f Sir Dudley Uxdrr He wa< chosen Ke- '^'' '■"'' '"""I"" in .Novmbrr I7:;'.t: an. ''i The n.n> WillnuN .]/„rr.f;/ the Inuitli - nt from Westminster Hall, and not from the Senate Hou.v^e; and he was not even a Kiniis Counsel till November 1742. How uiuch he Mas C(msultciie of the Mana<:ers Ibr the C'onuiK.ns. on Lord Lovats impeachment: and such was at once the moderation of his inauner, the candor of his spirit and the elficacy of his elocpicuce. that he was thanked. lujth by the culprit and tb<- Court. ile was long Solicitor,, not bciui; ap|Hiiiited .\ttorney-(ieiu-ral till April 17o4; this furnishes an other point of instruct i.on, that j)er.^e- • He was adiniUiui to St. P.-terV Cllcpf, Wo.stinin,.U.r in 1710, „t (!„• a^.' of (biiit..,;. : aihl in i 7 .'.!, was elurtcj to Oxford. It in curious to remark, tln.t tin <'"li.';:'' ii''>:i>trar, li.ini.' prol)al.Iy, .Moincwliat d\ill of hearing', record, .1 the :i,liin>,Mciii of Mr. Murray, ajred ei;rl,tc..M, t,oni ;,t .»«///, in th,. couut\ ..|- .^o.ncr.et. .Sir Widi-n Hlack.^tone din'inL' with Lord Man.slicld, and sa\in;rlliat l,c conl.l prove l.y record evidence, that, hi.s Lordship was .lot a Seotchm.ui l.oni, hut .u, Kii,Ldi>hn,an, [ roduc.d a copy from the CoHeire niatriculalion l.o,,k, which mad,, his Lordship l«Uf,'h x.Ty nuK h ; an,i h,. ,vphiiiie,i the mistake, by supp,..sin^' that tho porson who st ,t,,l his p|.„.o of hirth. to have pronounced Perl/i with. •4 oroad ..'Cciit, wLiv 1, till- Uc^i.^lr^r nii.'to,,k foi iiatii. Mt KRAY. 3* veraiice in an inferior station, generally leads on to the hijilie.t; ajid it evinces, also, his unassuming gentleness: ^Vhen Sir Dudley Ryder sunk under his infirmities, the Attorncn-General Murray was immediatelv appointed 'Jluel-Justi-e ; he was cioated Lord Mansfield on the Sth of November 1750, and he was, of course called 'Hto the Privy Council. Of his cmdnct, during two an.l tlurty yours as Chief-Justice, the Juridical Reports i'le the Recoi-ds and the Connnentaries. Durin- the I-l.tical contests of the year 1757, he acted ofhciallv as haucellor of the Exchequer,, in the room of Mr. Le-'e In I - / 1 he went to Paris on a private emhassv, and on li-s private atlS.irs. pr.ihahly; Lord Stormont, his nephew and heir. I.c,n- then Amhas.s-xdor at the French Court He was tinve ti.ncs ..lU-red tiie Great Seal, which he as '>'t^"' 'le<-l.u..d. He was advancd to an Earhhun. i„ <''-t"l"-r l,,i,: and f,y a new gran;, the ren.ainder after iadnre of his own issue male, was li,„ite.l to hi.s heir the V.sc.unt of Stormont. During the tumults of 1780 li-s house i„ nio„msbury Square was burnt bv the mob" Av.di Ins b,.oks nnd manu.soHpts. With his u.sual deli- '■"'•'• ''*' ''•"•'■'"■'' '••' <-'>n.pcnsation. a^ he knew that he ;""'•' ""f '•" '"'""IK'^.'^ated. Den dd .he popular insult '•v .-.n .lugn.ente.l assiduity in the labors of his hi..h Jn.st. I,.,- the popular goo.l. At length, his inlirmitK.s ""'•'••'•'""-"'• ••^-i;^" l.is nni..e inJanuarv 17SS whe.i 1- was i;.llowed by the regrets of ,ho profession and thr genuM.e respect of an eulighlened publie H, died "' * ^>'"^^—' -" «l'e2()thof Mareh I7:»:l, a^ed en-hty- •■';;l.l. h'avn.g a very gr.a. (or.uue .1... n^ee^sarv efh^.f •"l-Hdentuianagemen. throughout so, nauv> ears Hi. »"H' intellect and retentive memory remained to the 32 MITRRAV, HENLEY, PRATT. last, though h'. had lived, tor several years, under great debility of person. In April 1784, he lost his wife, Lady Elizabeth Fineli, to whom he was married in 1738 yet by whom he had no issue. On the morning of the 28th of March, he was ])uried in the same vault with his late Countess, in Westminster Abbey. The Judges of the several Courts, and the most eminent lawyers in- tended to have followed to the tomb the remains of this eminent jurist ; I)ut they were assured by Lord 8tor- mont, Ihat it was the particular request of the late Earl, that his funeral should be as private as possible. A mon- ument has been erected to his memory, by the singular aflection of a private ])cr.> creat'd I.ord Henley in 1700; Jippciiiitcil Lord ('haii(c!l(ir ill .biiuiaiy I7til ; and created Karl of Xoitbin-ldii in May ITHI ; and was made Lord Pioidcnt of the Coriicil in June IT'Ki. He died oii the I4th fd'Jaiiiiaiy 177 I. o;;. CJidrh.^ I'r,ift. flic third son of (h,. ( 'bicf-.Tu.stict., was ciiicat,.,! at i;((.n and Kiiiu's ( '..Jlege. Camliridge. Ur \\A<. thoii-li ill olis. and if *sas from thi^ li,.i^r||t. dining a season of perturbation, M TKATT. VOKKK. 33 that he .jraiiied his populai- honors. Other hiwyers and other .iiKl,irv?s as great as he. have coveted tlie popularity whicl) follows one, rather than wliat is followed. In 17(Jo he was raised to the peerage, and in 17GG was appointed to the Seals, which he lost h\- maintaining doctrine- that his coadjutoi-s -'id not approve. He sided with the cohmial pretensions and opposed the governineid dnring the war of the revolted colonies; conn'ng in collision witli Lord Mansfield, while maintaining such pretensions, he lost ground as an oriitor and a lawyei-, whatevei- he may have added to his popularity. In 1782, he was ap- pointed Lord President (.f the ( onncil. which he held du- ring his life, if we except a short recession in 17S:]. (Ju the 18th of April 17!U. he died, iiaving been create.l in May, 17S(i. Viscount Hayiiam and K.irl L'amden. ik- i.s ranked among tiie royal and n(.l)lc autiiors. as tliewriter of a tract on tlie niiturc and etfect of tiic llaLcas Corpus Act. the great Indwark of Knglish ]ilicrt\-. which he is said to Inu-c puldisJK'd in 17")8; his argument in the ca.se of Ilind.son and Keis,y . wherein i.onl Mansliold's argument in Windham and ('lictwyn.l. was c..nsid(ied and answered, was given to the puhiic in I7(;(;.* •)1. Tiic JIoH. Clnirh.^' York,, tlie second son of (he great Earl (pf Mardwicl<. Wi.s l.orn in I7L'2. an.l owed his .scholastic ednciition lo (',, .;,iHidge. as he owed his law learning to Lincoln s Inn, uhich lus p,.Mhic» .1 so many pn.found lawyers. lie w;i> m .•..adjutor in writ In-' ' ri •Thi.s argument when I,ubli^l^.a i,, I ,in„, w.-,. suLpr.-.o,! !- . rler of tho Court of Con.n.on I'l.as, ov.r wlnH, l.„ni Cannl.-n tlu.,, ^n- Hided ; but It w.ifl soon puhlinhod in „„ Syn. pampM.-t. a( Dublin 'im Park's odit. Cat. U, .md N. authors, vol. 4, 3G0. u I ♦ m « *» LLOYD, HAY, NORTON. the celebrated Athenian Letter?", a.id 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 re- volt. 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 ; l)ut he resigned this office in November 1763, and was again appointed in August 1705. He was chosen a Fellow of the Royal Society, a Trustee of the British Museum and Recorder of Dover. At length, in 1770, 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 eflfect, though the patent had passed tiirough every other form. 55. Sir RUhai-d Lloyd was appointed Solicitor-Gen- eral in April 1754, upon the promoti(m of Lord Mans- field. In 1750, he was called to the degree of Sergeant, on his Ixiing made Baron of the Exchexiuor, and he died in 1761. 50. JJr. (reori/e Haif. the Kings Advocate. 57. Sir Fletcher Xnrfoii was born on tlie 23d of June 1710, and in May 1741. xiarried Grace, the eldest daughter of Sir William Chappie, one of the Judges of the King's Bench. He was appointed Solicitor-General in Decem)»er 1761. in the room of the Hon. Charles Yorke, and Attorney-General in Noveml)er 1703, which he held, nrob.ibly. till August 1705. In K-bruary 1769, he was app )inted Chief-Justice in Eyre, south of Trent, f DE GREY, WILLES, KENYON. ^ which he held till June 1789. He was chosen Speaker of the House of Commons in 1770, and continued to fill that distin^rui.shed station till 178U. He was created Lord Grantlcy on the 9th of April 1782, and he died on the 1st of January 1789, 58. Sir William I)c Greij was appointed Solicitor- General in Decomher 17G3, in the room of Z\r F. Norton, and Attorney-General in August 1700; he was made Chief-Justice of the Connnon Pleas in January 1771, in the room of Sir J. E. Wilmot, resigned. He was cre- ated Lord Walsingham in 1780, and died on the 9th of May 1781. 59. Efmn-^l Wilh:, was app.jjnted Solicits ,r~General iu August 1700, in the room of Sir William do Gi-ey, and in Juno 1708, one of the Justices of the King'J Bench, in the place of Mr. Justice Hewitt. GO. Sir Lloyd KeiufOH, of the Middle Tentple was on the 20th of April 1782, appointed Attorney-General m the room of Wallace, who. howeyer, was restored on the IGth of April 1783. and <,n the 20th of December 1783, ho was again appoints Attorney-General, acting at the same time, as Chief-Justice of Chc-ter. Such shifts of policy show the distracti.m of the times He was appointed Master of the Rolls. I„ J,„, j^^g ,^^, was raised to the yet higher oflico of Chiof-Ju.tice of England, on the resignation ol Lord Mansfield, an.l was at the .same time, create-l Lord Kcuyon <,f Gredin.rt<,n •'.the county of Fliut. He dio.l at Bath on the 2.1 of April. ISdj' w!!i!(> ('lii,.f l„ ..; , . . 1 "H.K '^'iRi-.)u,>iU'i-, custos rotuloium of Hiut.hiiv, and one of the Goyenior. of the Charter, iloiise. (4 «9 3t3 ARDEN. M.VCDONALD. CI. Sir Blrlard P. .I/v' /^ tlio second son of John Anion, of Ard en. in Clii-sliirt.. was t'diicated nnder tl tuit le ion of Tlixor. tlic editor of I?iitK'r"s R einains. and pro ceoded to Trinity Cnlleuo. CamhricJjre. wherein he dis- tinguished liiniseir. He took his M. A. detrree in 1769. He was ealied to the bar In the Middh- Temple Society, and Ava- api)ointed Solieitoi'-General on the 2tith of De- criuher \~)^:\. and Attorney-General on the odtli of Mireh 17S4. lie succeeded Sir Lloyd Kenyon as Mas- tor of tlie Uolls, in 17SS. lie was appointed Chief- Justice of the Couunon Pk'as in Ma.v 1801, when he was created \Am\ Alvanley^ and he died on the 19th of :^larch ISOt. (i2. Sir Ari-hUmUl JfinJondhl w Its l)urn in 1747. the 'HI of Sir Alexandei- Macdonald. of Slate. l)v the Lad^ Man aret Monti:-..ineiy-. the (hmuhter of the Ea-1 of E"-- liiiffton. and ca n-se. the hrotiier of the late Lord Macdnnald. \\\< education, h entered AVestniiust '\ve\er. Avas English ; he ei- Sclicol in i7(l(). at the ajre of thi- tec'ii. and a-^ eiected tt) Chri-t Chundi. (' ird in I ) 17 elected UepreM-nt^itive in Parliament for Hind in 177!. and fur .\e\ve,i~tle under he was appointed oneof tlie Kino- one of the JudL'-es for A\'aU in Mas a ipnmted Mlere-sor t(i>ir Ki( iJiie. in s ( onus 7Sn. In hai'( IP . on. l7Sllaiid 17.S4; cl in 1778, and April 1784. he .Vrden as Soliei- toi'. lieiir-al ami 111 >(■}) tei iilie i:i. he \\■a^ .>ir Con ,\ I'C ie(|uer. m the room of ho \\,i> piMiic.ied to l.eChief-.IiKticeof the miiiii ami ir A rcliif>aid \va- Council)r on the ^")t "A'oi'ii a 'rivv V Alter d''di;iri;in'r tl irreat trust L\MB. JACKSOX, KEMP. SMITH, ETC. 37 for upward.s ,.f twenty years, with sati.sfaction to him- se)'-an,l benefit t„ the public, he gave in hi.s resigna- tion on account of the faih.re of his eye-sight, in Ox^to- ber 181b, and on the Gth (.f November Ibllowing he was created a iiaronet of the United Kingdon, in considera- tion of his long and faithful services. 0;:i. S/r Matthiw Lamh, who succeeded Mr. Fane as C.)unsel to the Board of Tra, n. 1746. and died in No- vember 1 70S. (34. IiichardJacf.,0,.. •, was appointed Counsel to the^Boaru of Trade in Anril. 1770. and died ou the Gth ot May 1 ,, , p,;,., c,„„,ii,, ,,,a CK rk of the "aper Ofhce in Ii-eland. an office which Lon' nves had hdd. 0... Wdlunn K!' Miirvland. 08. WiUlam Pam. of the sjuue Province G9 The /A... y...,y j,,i,,,, ^^ _^^^ ^^^ the Council. „| rhc simc Province. ,.:^- f'^'" ''■ l^<-tor of Laws, was born i« i;;,'''^:^:;7 -u.y in Hatton Canlen. Choos- H-^thec,vdlau-A„.hisp,.,.lession,he rcceivec. uni^ versityodu..at,.,nar(^.,,,l,nd,... He .s said to lu. e ob^ '"'""' ^;" "'•^' l—^-" '- urran..... the i),.ke of ^^•''f':: '■'-'•- -'-^"i--Il.-.f the rnivcr.v '' ;"""-"'r "—'-t.-l Master of TrinUvCl II. 111. k. M>, IIimIisIiii..;,i,,Ih.,I 1,1, ,,;!■ >■ '■'•■.'-"-iPli.ii.i-il.li,. Kill,. A,K.,™.. "" '" '" •^"- ^-"-K'' ll^'.v, «!„> „..s „,..„„„..,| ,., I,, « 38 Judfro of tiR' A relic MARRIOT. WYNNE. iTiiS. 1 )v\n'j: t'.icn \ Caiiibridiic. In- piv Ixvh . to tlu> Kill"' < s and tlie ri('i'-(,Miiin viUod the f Den marl' Piero l'niver,'^it\- of (.'ambridjie in particular, ddended in a Cliariro to the Grand Jury at the Quarter Sp-;si,,n-: for the Peace, at Camhndjie, ()cto^ her the KUii. i7 wher examined at the liar of the House of Coiiuw»u.s, on tke Que!);-' Conslilulioii. lie w a- appointed .lud'.'-" of the lli,t:li Court of Aduiiialiv in the 'ooin of Sir (ieorjie Hav. and at the aye of 7- he died. ,,n tli. :.!lst of Mar/lj ISU;!, at tyeo I" iiioininu. whiU' sittin-:- im hi.s chair, at wiiistead II II. neai' Su il.iii\ w hit I4 he had represented lit- r(si<;lied this liiMJi (ilbce in Oetoher I 7'.)S T in t II in two I'arlianient- His 1 t'.irned and dn^iul'ir j'idjiniei)t lilt lii!i'. Doctor di Laws, .seems t^^ 10 the rou i.\< d the (rack of Sir , lames Mnriot of 111- ill's ij'o!e.s«iiiii. w liii ll ha •en dignified I >\ s(i iiinnv C'lniiK i,t men. w ho wert- disiinHuJ.he.l li\ Mieir talents 1(7'"^ he was ajipointed \'icar- (MKI pinlilt \ du'iu'ial of I, 11 (»ct..l,, , pl'o\ nice t i| ( '.iii!erlini'\ and hi- le decease of Sii tv's A^ room Sir Win \\ Majesty M Privy C Court ,.ht..,„,| Hid. Inton.lant of (he Fiefs, and K les; »::•) pensionary ol' Hoi- <'*l'('r ot" the S(m1.. ways conmiand su I'l'CSS. ..nn^ trouh'ous (nnes he govern..! Holland with ,. rent Hl.dity. thonsfh he eoul.l not al He rxciudcl William the Third. 1 Ids eon.-^titiitioua! share in the - I' was (herenpon attacked \,\ t niice <,f ()|- mi;e. Iroi n H "venimcnt of (he S(af r rniee of (),•!, """• a.-sas>in> hnt t ii/^e was rest ire Th u " ,U''''a< Mii'i •■'•»'" <•> til" Staddioldorsh lime, within (I ••"idd ii(i( .v.ii (■l\ «'M>t a; (1 le satne le same 'nvd ; ai: ,1 "''!"i''lie : .iiii(u.'il IK Witt to (1, ' I'oiiuJai- tiinndt I'lisations en I'eoph !"•">'■• which sarrilic,.,! \h pass,, ,11,,, ;,( (!,,, ||, K'.l, re,K.a(in^r ^ith hi- hiM |„,.a,h, I| !'-'ie, ill 1(172 : h JicsUhi t-t t, '4. Sir n < IK I : -,1,1 fir ipnsiti 'ir'nn. ((• >!'ini III nl-,|«'c l<;-)( «). »'ll.|>lc, ol ». at r. H-I'll, .'11 I M; on- \ a ivt '•I- o( (h. irned l«'^'''. (-'ami e Was a .s( "' •', under (I '"''■"I al Kiiiaiiii,.] <',,! ^oiiie (ravel, the 1 K' »'nidM. ( '||,| ledre'i ( Word \rt '■^"'■|'""<'n. A( the ivM " •■" private |jf IT •lIKl With .1 \ i Ol ition. I ••« of S.T\ •' i" li<'laiid,,|iiri "' I'diriud lu J- "ff dator. H <■ i^ e(.iiii(i\,,.h„.(| in KKIS, and SI'l'Dl I I \ pi.'ised f l\. lur y, a.H a iic"-(i- "'•>^'''dinLr th,. trip! I'llMlll lllir the I e I'-a^ne Marriai:c i',^ the 'l'' MIIIM Wl|.i~.' iniud '""'"'" ■""""*-'reat,ii„U',K„I "II virtu. • lie lit \V,t|, ^'>«<^ intent. ^ITlIO boll! icI.N til "'I''. iTted aiiii \l or can tlu'ir oi <• n.iKO' <'ri>w,I, II "" «ttil.(>om h amors, tier,-,- iii„> l„uj OR^f «... 40 TEMPLE. Princess Mary with the Prince of Orange. Both DeWitt and the States of Holland ex])re.ssed their satisfaction ■with the conduct of Temple. After the peace of Nime- guen, he was recalled from Holland, in February, ir.78-9. He now applied him.self to his private studies. He died in 1700, at Moor Park, near t*andianK in the seventy- first year of his age ; leaving a character for principles and knowledge, which has been drawrt in very opposite colors, })y very difleient parties. I* OPINIONS OF EMINENT LAWYERS ON VARIOI'S POINTS OP ENGLISH JURISPRUDENCE. J'^irsf. Tlie Ki and rrc'laiid ng, Mho wears the C tiirv lu'l oii)(nN tlie sov row nofGrentBriUfn »f t] <»n^'infr to the Maine ( -''•^■'gnty or the general terri- ti 11" iiihahifant.s tl ••">' "<' the ex-i.sti„,r Ih 'fr*-">f, uiKhT the '••»"n, with the all "« iHvv. The foil i<'K'ance various modifica- f"arknowledKethetn.thofih.. '' l''-'"«''plo of the estnl.li.'l nicnt lat lowin^r opinio,,,. Meem '"^'•'PnTo^rative, within tl The K 'x' consid^.r,,,! ^ ''v/'/'y//aiftho,-i(y :j (J,- j , l"-"P"'^'»<"n, as a fnnda- ion. K-n, ' Of the K i'l^r's ErrK loMil I'l'To^.rtive, ii, ff 'inder two heads ■ J ()^ '>« ^V/v7nnthorif\ '""^«' territories. „,av MS h\rle. ft '"■" -"''"Mtlinate head.v "*"" nf theeoh,„i,,H ilioe( "; '■"'^ix-t. is ,i,.st,.ii,„t,„ '••^t. The UisI road. Th int( V <•'■ I.ond iMUv s [ireniirjif liiiti i\e fHiHcr. IM MI tl Je cojoiiH- P'-nor-to the anal -•'■The An-hl,i,.|,„p„n '>n IS anter •Koii." nun prerogative pow IS- ers, in 42 OPINIONS OF EM NEXT LAWYERS. (1.) T]i(? opi.iin, of the Aftonieii-OttK'val Xortkey, on iJu's .siilrjicf, in ITO"). To tlu' Iliulit Hon., the Lords Commissioners, for Trade and riiuitations. May it please yoiu- Lordships; Li ohedience to your Lordships' eoinnmnds, signified to iiic 1>\ Mr. !*()])pl(', Jr.. your Secretary, I have consid- ered of tile iuiuexed extract of a letter from Coh)nel Seymour, (ioviMuor of Marylaml, relating to the Jesuits and ])ai>i-ts thert- ; and the extract also sent me, of the •'■rant ol' the iToviiice ol" >hir\land to Lord Baltimore, relating to the < 'ilr-ia-tical power. -'\iid the (piestions |)ropo.<(Ml tliciTon. whether the law.- of Kngland against l{omi>h priest-^, are iu fmcc in the plantations, and whetlu-r her Majesty may not dhect Je>uits. or Komisli priests, to lie tunicil out of Maryland. And as to the ,-aid claux' in the grant of the Provime of Marvlaud to |,ord Haltimore. relating to the ecclesiasti- cal power. I am o|' .ipinion. the same dotli not gi\e him an\ power to do au\ tiling contrary to the ecclesiastical lawi» of Kuuland. l)Ut iie liath only thi' advow.-ions of, and ]io\\ er to erect and consecrate chnrclies, and such power a- the Hi-lioji i,f Piuham liad. i^ Kai'l I'alatine, i'l his('oinit\ I'.daline. who was >ul>ieri to tlie laws of Knglaml ; and the consideration- of clsapcl- i ii^ht to he, as in Knt land, ly oitlnxlov mini.-lci- oid\ As to the ipiestion. whctliei- the laws of Kngland, au'aiusf Komi'^h priesl.s. are in lorce in tin- plantations, hy ihe .-lalnleiii Jiiiio of lih/alteth. eap li . e\ ei'\ .lesnit, •si'niii. \ in'ic'^l, or other -uch priest, ih-ncon oi' religious, or ecclc'fiusticul person, !)oni uiihiu this r»'alm or any THE king's prerogaTPv-E ABROA. Other Her Majesty's d professed, by an oiiged ,.r pretended. Ihnn t\ l^'K'inions, made, ordained 43 or J come iut >tl o, Of i)e, or i-e yauthontjorj,n-is,Iiction,derived,"chal <^' of Puune, who shall 10 ,Se aiiv other or her Ah.jestv's ,] ""I'll m any part of this real ni or ti-oason. it is ,,lai„, that 1 """llK.ns, i.s guilty of hig-l ion," lia th the Queen had wIr.,, it !»t'en made, wlu'tjjer it iiw e.xtended to all the d 1 U"i''^-<1 after, as the plantations 1 ^vas made; hut t'xtendeth to <] »niin- ■nit. w] '•^ provided tjiat, if preventing the ♦tf exereisc any oti popish bi.^l iatsoc\i.r. si lal ler part o!' tho olli ''in\- ])()- ■ay mass. '•'I' '"■ I"'''«'.-t. uithin (1 i' "I' function of a iMM.ions thereunto W\on,^ lawful! :-^iii,i;-. such person I "■^ '••■aim, or the do pnsonment. i M y <'n,,vir.,.d. shall b.. .dju.lged '•Mich plaee witjiin tliis | H'lUl th ereof 'i)t'st\, bv tl H' ai,\ice ,,(• I ler 1"»'"^- I ;nu of upiniou this I 'riv\ ( '" iHTpi'tuai im, '■''"At'dom. as her oiuicd hail an tions, the\ I Kngl •I'liig doiuinioMs bej '\v extends to the plant; I' an< Wa lives. ""d extends (oail ,„ iests | i<'"^nig t(. th. rea Im of •"•eigneis a,' well as As to th< rect .Jesuits or K'omjsl pn'stion. whether Her .M, '.it's'.N may uot di- land. I not made d ■"" •''' "pi'iioii. if (hi- .1 |)|-M-sts I,, be turned ou( ,,{■ M irv t'sUII- law, ••'i>z«'!isor naturalize,!, ||, rouilie (! "I" lists be alieus. ■I- .\Iaie>l\ iMai i) >t\ ''"' '" ''''I""' Mainland, ,!• ,1,;., iMa\ natural b..rM .-ubje.ts. (| be H 'V er "" Her Majesivs d le\ ounuii uguiiisi ,.u tlu' last I Oeft 'I'lore-nieulioih ■'"■"" !'<■ iMuislied '"" "••'> '"• pioeeeded Ixr is. I aw ii-i. ■.IM\ MUMIIKV 44 OPINIONS OF EMINENT LAWYERS. i'5 (2.) TJie letter of the Right Rev. Dr. Gibson, the Bishop of London., to the Duke of JVewcastle. May it please your Grace ; I troubled your Grace lately with, an account of what the Independent ministers in New England are doing, in order to obtain powers for holding a regular synod. To what I then mentioned a.s deserving, in my opinit)n, the consideration of the ministry, I desire to add, that it may be a doubt upon the act of union, between Eng- land and Scotland, whether the Independents in New England, are any more than a tolerated ministry and people. The act of uniformity, 1.3, 14, Ch. II., extends no far- ther than the realm of England, dominions of Wales and Berwick-upon-Tweed ; and therefore, left the Crown at liberty to make such worship and discipline as the King or Queen, for the time being, may think proper, the established worship and discipline of the other ter- ritories. But b}' the act of union. 6 Ann, ch. 5, every King and Queen, at their coronation, " Shall take and sub.scribe an oath to maintain and preserve inviolably, the settle- ment of the Church of England, and the doctrine, wor- ship, discipline and government thereof as by law estal)- lifihed, within the kingdoms of England. Ireland, the dominions of Wales, and town of Berwick-U'^on-Tweed, and t^^rritories thereto belonging.' If by this clause, the ministers and people of trie Church of England, in tln' plantations, be made the es- tal)lislu'd church within the gttieral governments, then all the re-'t are only tolerated, as here in England And if so, tlii> le ill u.M' may be made of pennitting tlic inde|H'ndent ministers of New EiiL'land to hol4th inst transnuttm- to u^ the <.„ .1 i • -"itn nist., ,,,,„„ „,„ ,,,,.,, ,„'.'■"' f""-'l- iu.l re«.ive,I 1 ' ' ''""'I"M, coiicernin.-- in »A ":r::z::- ::-: ';- ;' ■ - f^-;:" ■^I"l W.. hllUll.iv .vrtlfv v..Ilr \<\ 11 • «.. (I, I '"i\. \,,ui hxccjlcncics, t hat ii.^ to the several matters of i;.... ..:.. , • .. ' '"' '^'^ " ""• said iet- 4G OPINIONS OF EMINENT LAWYERS. tors and | aper.s therewitli traiismitted, we have been obliged to take the same as they are therein stated, hav- ing al present, no opportunity of ol)tAining strict reg- ular proot'; and therefore, such parts of this report as arise out of those facts, are grounded upon a supposition that the relations, contained in those letters and papers^ are true. The address of the General Oonventiou of Ministers is mentioned to be in these words, to wit : " To the very Honorable William Summer, Esq., Lieutenant-Governor and tVmuttander.in-Chief, and to the Honorable the Councillors, to the Hcmorable the Kepre.> distress us; considering al.Mt, the laudable example of our predeces- sors, to recover and establish the faith and order of the Gospel in the churches, and pro\ ide again.st what immor-. alities migiit threaten to impair tliem, in the way of gen- eral .synods coiisened for that p'ujMtsc ; and considering that tortv-live \ears have now diU-d away sinre these clnirches iiave i|^\>; .seenan\- siicli convention ; -it is hum- bly (K>ired that the honored (Jcneral Court would expres.s tlxir ((Mircni f .r tiic great interests of religion in the country, by c.dljng the .several clnn-clics hx the Province to meet, by tucir pastors and me.s.sengers, in a syiuwl, and THE «mo's ,Rm l'>»c'.l hy „,„„y de,i,,,l,i„ co„,e„ueneo, w.„.,l,v H , o< .ho.,e who„, «„J ,,„s ...ade .„rwe e tTf ean>e„ly wi.hed the is,„e there.,!' ,,,„. .e n' , £,: p:t:.::,;;::r,:;;:.:-.;; That (his .v.s,,|uti,in „r d,,. ji ,. ., »•." ~-„t „p „, the C,„„„-i , ""I'^-entaliv,... K»tah,i»hed.i,,,,w,.,,-,,,, '■.^'■"'^•'■-"'■tl.o i 48 OPIV' ,>;s OF EMINENT LAWYERS. Ml 'ill I and contains several reasons against the address of the Convention of ministers. Upon this memorial, the Council, on the 22d of June, 1725, resolved, that it contained an iudecent reflection on the proceedings of that Board, with several ground- less insinuations, and voted that it should be dismissed, to which reMilutioji the House of Representatives agreed. As to the <|uestio))s coutjiined in Mr. Delafave's letter, we beg leave to submit oiu- thoughts upon them, to your Excellencies' consideration, separately and dis- tinctly. The first question is : Whether such pastors and mes- sengers have any jjower to meet in a .synotl, without the King's license. In order to fbrni an oi)iiiion upon this jjoint, we h.\ve perased the Charter, which is \\u- fundamental Constitu- tion of this Province, and have looked into their printed Acts of A.s,senibly, as far as the year 1722. The Charter benrsd-ite 7-"" (>tnl>i-is. S^"^ Will, et Marire. A. I). lO'll. and recite; two former Charters. ,.ue granted 3 Nov. IS Jac. 1. and the otiier 1 Mai-. 4 Car. ]., which was vacateil. by j'lul-iueul upoi) a ,vr//v /"■■., in Trinity term l(iS4. In ;jiis Cb;iitcr. uotiiiug is contained. t<'nd- ing to the establisliuicnl ol' ,,i,y kind of clmicli govern- ment or ecclcsinsticaj autboiity in tliis colony, but there is thefbllowingclauM. : Ko,- fl„. greater ca-c and encour- agement of (Mu- loving subjects inhabiting our .said Pro- vince or Territory of Massachusetts J{ay. and of such as shall come to inhabit there, we do. by th-,. presents, Ibr us, our iicirs and successors. gi-,-,nt. es(ai4ish and or- dain that ibrever liercaltcr there si, „11 be a libertv of conscience allowed in the worship ^i M',^} f , njl ( hrts- THE king's pherugat IVE MUiO.vi). ti"an^ (except papists) inhabi or be resident witliin our said P 49 tin- or which shall iuluibit Bv the roviiice or Territory power given by this Charter to the ( Court or A-sembly to make laws and ;ireauti:,.-i/ed to dispose of mat 'cneral impose taxes, they th( reli; defend ■;ir);L'ct; inhabitants of the said P ters and things, where) •fhV •loiisjy^ j)eaceablv and rovince, may Ik ed, so as their liood 1 eiviMy govei'ned. protected and may bring the Tud knowledge and obed de and orderi lan nati\es of tl V (•onvei-sati( )n. HMice of the oidy true Ciod vior of mankind, and the Christian f,itl Charles J., ia p;. ...m . ., le country to the ind Sa- ro\a, be tl bett ■lis said lett( intention, and the ad '. \vhich Kin.r '\\a.- I us le pnncipal end of the sai- patent, declared ^'ntui'ers- f,-ee profession t. to all said I t'l' manitaining lil,eit plantation; and tor tl y oi couseie persons, at any time I i-ovince or Territ iK'e therebv je granted oi'\' "•".g and re.iding within tlu Tn the Acts of As.^enibl c'cclesiastical authoritv : but ing that every town shall b > • "e lind nothiuii- licrt' are able, 1 earned and orthod 't^' pi'osided of relating to ■■^ome Acts direct- flefhiing what tl "^ nnnistei-orminist "ne or more there them. are otlu'r Acts H-y nitend bv that d »'i's. without escriptioi! "ppomtnig methods i ;nd And ill tl passed, \v •uade to the ( le second yeai' of Jjis .A? i-^ enacted, that iciel)\- if I lest \ oi- niaintaiin'm^ '■'•',^",an Act 'ciicral < or district ourt or .\. upon ivpreseiiti destitiile -ciiiiih. tl IS provided. ,,r d •support of tlH.i,. "' •' "liiii^t.'r, .pialilic.l lion I' •■Ill\- tow II J'-rovide an " '" -■■'••'•t to inak minister, the (i 'y law or ilie •' >-<'nd an able. | ■'^'•*"'' conversation, bein^ i e due pro\ i^i,,ii | '"''■'■'' -^^semblv shall ''iii'iicd, ortliod irst I "V minist vv. e ec(jmmended bv tl iree or i 50 OPINIONS OF EMINENT LAWYERS, more of the settled ordained ministers, r may lay a tax for the maintenance of the minister. From these letters potent and laws, v^-. .:'auu.'.'t collect that 'here is any regular establishmci j ; national or provin-ial church in thi> colony, ->o • : -, irrant the holding of convocations or synods ot the ^ -^y ; but if such synods might be holden, yet we .-^y-- 'o be clear, in point of law, that His Majesty's su^ Ciuacy in eccle- siastical aflairs, being a branch of his prerogative, does take place in the plantations, and that sj-nods cannot be held, nor is it lawful for the clergy to assemble as in a synod, without his royal license. The second questiim is : How tar His Majesty's prerog- ative 1 .ay be c(mcernconscrjiion<-c (.I'siirh nn Act. without .^ociiia: the Act itsoli Tlii> \\\<{ (nic-t ioii is : What mitlioritv t1 i()S(> inmistrrs ii'iiiij,' so O do !UiV liiiAi' to meet in :i (ieiicial ( 'Duvontion. iiiid 1 S(Mnl)lKl. to lujike \\\v\ jui'-i nt a not niilawrul, pro- ^i imw e \ cai'- a-o : wc caiiiidl hrli) -ei'vim;- to xoiu' Kxeelienoies. that tl II- computalit'U falls in with the y«'ar ItiSd. and that t h.' tnnnci- ( 'har- ter, upon whieh the ^oxcrnniciii ..I (hi- riovinr,. de- pended, was repealed In win- facids. in the \.ar h.Sl, and the new Charter fjranted in the \car IC'M : i,- whence it appears, that such >\ m d m- .\--cinl'l\ . was holdeu a short time hel'ore lln icpialiim i.f their ol,] Charter ; hut none Hince the p-antin^' of ih.- mu nnc All which is huml)ly .suhmitteil to your Kxeelienoies' j;reat wisdoni. Sepleinher 20, 172") P. Y OHhE. i KO [(',.,: THE KINTt's prerogative ABROAD. ( 1.) Th< opinion of ^fr. II W, in 1710. '■///f /, > , I'l-scnf to racdiif h ilie K tit hi- 1, 53 tnfja )it(t. \ "I .111^ A. t i.nsso.i in the Geiioral Assomblv of I .M:ircli, 1(;(12. n])„ii which .a ri| 1 l'(.r('i\('(i 111- didi- subsc riiie tl '"P Ml Kn-huKJ. and ..hah t! » '>(' <'()iii(irniil,|,. f len tions of the (' " ih.. (iMJcrs juiil Caistiti IIIM'fl I fahli-hed, upt)n \Miich ihc ( 'I iMiL^iand. ;ind the F. iws til,. I ,' e t'l iniMict tl "' -'I"! ni,Mi-t(.|- int IIKll^f 1)1 j'leM'iitatKMi nf hii tendinii hiinsell" a presiiinc i^, i,ah. that vliall •'I' pi'i-siin prc- '■•'IV ♦,) this :„t. M : and il ni\ i>niti nnd '"' ""' in.'iMn- an.i pru,w,rt iis,s-Msineiit.s for hnild ""'";-' "'(■ th," h«vies mid rhapels. provijai,.., li,,. ,| minister, tin n ui tn • t 54 OPINIONS OP EMINENT LAWVERi*. ed. tliiit twelve of the most ;il lie bv tl iiii'ii of each ])ari.sh }> 10 major uai't of fl„« sai,| pari-!). (>hoso to he tr\ . out of which nil make chi nl>ci- the minister and vestrv tf> • ice of two chiirchwanlens \(>arl the death ..f \ . NO in case of .iii\ vesti the parish, that th<' said yiiiaii. or Ids departure ont of III iiiister and \('str\ make le ves- clioice of aiiotlier to supply Ids room; and he it further «Miacted, tliat none shall he admitted to he of tl tr\ that doth not take the oaths of premacy to His Majesty, and sul to the doctrine and discipli,,,. ,,i' the Cliundi of Kn-,'1; [Ccpv of tl alleion And we do rnrthi !• ui\e a-i| and aiithoiit\ ti iiaiit unto \ on, full power churches, c| te an\ pei-on or iiersons t o anv our said cojom \(>id. lapcl^ or other cc(desiastical heiielices. within a- olttn as the same shall happen to h I Niiiet\ -ihini .iiinK. ,,f the K (io\ eilior I iiiL^'s in.-Jtnietions in (1 10 ^ 11 ai-c lint to prefer an\ iiiiiii-tei' to ;,ii\ c'cclesiiis- *"■■''' '"'"''i"'''- '" 'li^tt our colonv u ithout a certificate from the l.'iHit Kesereud father Ml d lil M-d l?lsl Ol) H'trino e ami se aiidiil ■f V' u are to use tlie IMopei- and usual iuean« for the removal of him, and to supply the vacancy in .such niannc v\ e have directed. N. B. The power of coUatiuj? to henel ices in Virginia THE KliNCi s; I'KfclKOG.m VK \ HKO\D. i« fxpm..sly c'x-Jiii\ . 65 II iiNo fxcc'ptc'd in 1 on s ,,j_ "■< <'oiiuiii,ssion All iiiiiii^ti'i-,s liiii 15 isliop. (1,. IIIIMIsU'r: tll(- ( lo x.iiic \aciiiit IP uovernor sends i|,(. niim'st Jia\ ini; in\ . a> tlie I "■■■'■ '•*■' iM- t.L'() ,M|t ,,)||| Mill ,H'.st\ ♦■iJJiplaui.^ ei -er\ ice "|'l".\t-Hl in 111. M; (^'1(1 n, Uijetl .fl Ifl-. h\ tl »l«'fli not riaini the ri-i,t rn| '"^ver al.iresai,.. the K u atir 1 to all in,-;- "■'ii'i' "le ri^ht u| il... ( I'.insjies hen "k' :u't entitli tiio \('sti'ies fiia li'rht ot Ministers (o he ind i"wn is ahridii-ed h net '•.- eiin tl minister ot tl before tin odenee \ Mv I.onl« "■"■ l'l'--nre, without ""l"'*"t iiiilge having 'is ciise is |,nt in i"y remove Mich <'i' pld\iil iin\ oU'en coKnizaiici- ,,]■ Mich n i>he(lien( • o \dn perused the al

iiti()ii-^' nf tJu- Attiinti ij-(li luraJ, Xortluii, rihitiiu to tin rl, fi/i/ of \ tfi/l IIKI. \ I1((,1M \. latter cii 1 ol' Nov. I7<>l Me moranchnii inr Cdloiu'l ()uar ranousnes? ol' the (•ler<:y. Ilis |';.\( the aliases in this matter, w liicli aic t ry. '•oncenmii: the pre- rilfnc\ t(i prevent lese, viz 1st. That the vestries of tlii.- count \ w 111' preteiiil t( havo tlio ri;:ht oi' presentation, do >eld tually present, hut Hirce the nunisteis to cut ly agreements, after the \\{\*\\<:-^ o!'ciia| to serve the V lire liir so nuieh. I'lii (ir iicNcr ai'- er mill \ car- ilaiii- (U- h'ctiM'er; 'hX That iipdu any distu«t.i pn If a wnted : And !i 'he \e;4try, or ;ui\ \^\ their order, .shut the eliurch THE king's PKEKOGATIVE ABROAD. flooi> iip').i hiin. wliiit is tl,,. pniii>hmeut of such fact ? jUiiisf, r-^- to h, Siiiht(t,il. riiat lor tlic preservation ..f purity, and unitv of d K' an.l .lisripline in the CIiuicli. aiul tlio rii-l.t nd 67 trii oc- istnition of the sacraTnent. nun- >»i<'iate ill this couiitrv. lait such as si 11.) minister W a.hnitted t( the f "ill prinhico ro •••v.'.nor a testi,iin„i,.,I fl^.t he hath nreived ] "'■"'""^'<"' '•■■<.„, some Hishnp in K,,,ian.l. au.l shall Mihscnlie to I lien L' coiiloniiahle fo tf txt.ons uf the Chiuvh of Kiiuland. and »' oiih'is and consti- cstahlished f|uesto 'i|""i wliich the (iowiiHT is I the laws tl I ere leiein- re- " '" indiii-t the sjid Hall make presentation of | ''"iii-'«'i inio any parish that pretfiidino ii'ii-^''!! a ininl-ter. shall '"": ■""' il';i'i,\ other person, C(^n pres-mi.. to teach or pivaeh, nul l':ll-.\ tn 'his Act .ovminraiMl (',,„iicil aivherehx- dr~ired i"'l'<'l.\ «>r priviiteh. th t(t suspenil and -ilence tl Iiis obstinat illid eillp()\\ered "■ pcr-nil s(. ('Ilelldilln, ;,,ld upon '• p<'isis(ence, t( '"i|"'l liiiii tn depiirt the ''""''■""•'i''y .1- il hath lu.eii Inr- coiintrx with the Ijrst i"»'H> provided l,v th.. 77ih A.'t. nia.l,. .-,1 .1 till- 2d of March, l(i42. lines ('it\-, \\ lefher, if time. th. (' •■I pari h .1.. nm "iiiiiisv,|,-\ ur th.' ( l"'"-''iif ill a r,,n\,.|iient lie,-,de.'t, I !,M.s<. ^ !'• ' <.i\ erimr •>' It'll eiltitl.Ml t. Ill .a-.' iif tl lis I"''-'"' I" Hieli Ii\ii|M- 1 »v Wh.^t I'l' il aiM iiiiiiistcr I i"iicrs. ,'iii.l ,dlM\\,..| I' lie eli'd, |\ t (i |\ til, III t le jiarish- '\<'in"|- th.'ivhv enahled " ser\e Ih '• cure, is the iMimto / th.' ( '" ;;i\e iiidnctinn t.. sii.-h ir <"^cnlor shuiild indii.t '■•III the pjirisl iioiicrs reiit.n e hnii ' !iii\ minister so elet'ted >-v.s,oMl.c,n.made,„r.hel.,nl.lin.oft|,..chure} les. m il 4t I 'i 58 OPIMOXB OF EMINENT LAWYERS. and for the setting out a glul)o ami other revenue, for the ministers of those churclies. aiu] the advoM-sou or right of presenting to those ohurehes being vested in the pa- rishioners of eaeh parish, and the Governor being con- stituted in the phice of. and as the Ordinary or Bishop of the phmtation, to aihiiit and inthiet presentees, and to punish niinister^ preaching contrary to hiw, hv the 1st, 3d and 4th Acts of >hiryiand, 1 conceive the ad- vowson and right of presentation is subject to th- Laws of Enghmd, there being no express law of tliat planta- tion made further concerning tbc sani<- ; thert'l'ore. when the parishioners present, and their clerk is inducted bv the Governor, who is s,,. ;,iid must induct, be is in for his life, and cannot be di-phu'ed by the paiidiioners. If the parishioners do >iot |iiesent a minister to the (Jov- ernor within six months after any clnuvli .-hall luvonie void, the Governor, as ordiiiai-y. shall and ma\ collate a clerk to such church by lapse: and tbc minister be shall HO collate and place in by lap,-\ Edward it there naming eo py ol thr same (pieriesl.v (lie 1 nia. I sent a •t h i'urti ve\. Mr. EmanuclJone? ler Y( rmnea s, and a iruniea to I the follow in^- repoi-t port. f..r Mhich he induct the i l'<'iiij; (•on.-tiiNi '-">• a.'i'l with a power t( iiinisters. the Governor ' I ini <'ns, and the I i. hi "mister to be presented, and thereby 1 ••'l-i'linary. andas Mishop of the pknta- ' "liiiisteis preaehijijr aw I punisi lun of till 'i'liiion. the ;.dv( )\V- Mlbject to ll pre.sentatioii to the < hunl -•I"- "I' Kn.ixland, then I K'S, IS a \v that plaiitaiioii mad 'iiiue , therefore iirti >ciM^ no e.vpres.H I' r conceriiii I" tlu "licii th( l)un.<-hiuiiers present tl leir :■? m Ml HI f 60 OPINIONS OK EMINKNT LAVVVERS. clerk, and lie is iiuluctod hy the Governor, (who is and must induct on the presentation of the parishion- ers,) the incumbent is in for his life, and cannot be dis- placed In- the parishionei-s. If the parishioners do not present a minister to the Governor, within six months after any church shall l)ecome void, the Governor, as ordinary, shall and may collate a clerk to such church b\- lapse, and his collatee shall hold the church for his life; d'the parishioners have never presented, thev have a reasonahh- time to present a minister; but if they will ni»t present, beinn- re(piired so to do, tlie (Jovernor mav also, in their default, collate a minister. In inducting' ministers by th«' Governor, (.n the presentation of the parishes. ,„• ,)„ l,is ..wn collation, he is to see the minis- ters l)e (pialilied. accoi^din- as that Act i'ur inducting ministeis ie(piires. In ,.;,.s,. nf the axoidance of anv cluuvli. the Clovernor. as ordinary of the plantation, is, accordin^Mo the st;itute «.f L'Stb Ileiu'v VIII. cap. 11. sec. ."). to api)oint a minist-.v to ollicii-.te till the parish sliali present one. or (lie sj.x uioiitlis be lapsed; and such person appoiiUed to olViciate in t'le vacancy, is to be paid for bis ...ivice out of tli.' profits tbereof. from the time the <'Inuvhb,..',,nies voidbv tlie law above stilted In tliiscase no mbii^t.M- is lo oHieiate as su.^b. till be bath slu'wed to the (bncninr lie is (,ii;ditie,|. .•,ecoidin,u- as the s;,i,l Act for iudu.'tiou diiv,ts ; if tiie vestry do not lew the to- ^^cco for the ministri-, tbe Courts tlu^re must (bMree the .same t.. be levied. Ki.w. Nohthkv Julv29. 17u;j. THE KI\(v".s PREROGATIVE A BROAD. 01 (0.) 77/< \an)f /mi liOid. ujer.^ opinion on Pop, I'n in M, To the Hi^lit }I..ii.. the Lords C iuid JMiintatioiis. May it please your Loi-dsl '"'!/' oinmissionors for Trade 111 ohfd lips lence to \()iir I^oi-ds|i to iiie InMr. J'oppK.. J ips" eoiiuiiMiKls, si.niilied ered ol' ti ^eyi'ioiir. (iov I'., \oiii- .Vcretarw 1 | ia\e cousid- H' annexed extraet of a letter lr<»in Colonel erno lilt- •• "I' Ararylaiid. iclatin- to the Jc. nnd papists there: and the extra-t also sent me of tl •^■'■ant of tiK. Pruvin... of Maryland to the Lord Haiti, rclatini; to llUl'C lie (■(•(■Jcsia^tica! '! power; and the ,jiR-stioi I"'"P"-'I 'iMTr,.,: Whothrr the Laws ofKndand IS iwMiiish prMv^l^. a|.,, ji, j aii'aiii.-.t whether Ih-r M; "Ire ill (li,. plant J<'-'\ ina\- not priest- dii'ect ,1 " ''<■ tiii'iied out of Marxland ' itioiis : and f-'iiits Ol' Ivoiiiish .\lid;!> tMl||,.,aid,.l "•■'""'•'•"'■^'■milie.raniorthelVovIneeor '''7'"''' ''''''-•'■'-' I'-ti-..v. relating. o, |,e....,.|eMa.- ""'''"'^^'■'■■'^'"""•"I'inlnn. .h,..ai,K.do,l,i,ot,.iNehMn ;"''''""^"''' ''"'"'"- 'I'in^eontrars to the ...... le^a^l ^..1 '"V"' '''"^''""'^ ^■""- f-l-ni^ .l.eadvow>onsor ;""' '''•"-'-■-•'-Hleonseera,.. ,,, ,,,,,. e. and sneh l-;--'l,en,d,opor,»urha,nhad, asKarlPalatine - -<;-i,.M.datine, .howas..,,ieetto.h.,,a..o; J^-,Iand an,., lK.eon.eenaions or ..hap.,. ,,,,,,,,,,,,. ns.nLn.land.l.v orthodox ,,.inister>onh. nult'r ""•';""''"'" ^^'"•^'"•■■^'"•'•-•"•Kn.land T y ":''''^'"'^*^— '"'--in the plantation..,,, -nuna.,, .nest, or others.,,.,, priest, deaoun or n.li.do' or eocles.ast,ea.p.,..on,ho..„ .„,;,,,, ,,^^,„^^^; H iirii . ! k T Hrl 62 otl OPINIONS OF EMINENT LAWYERS. ler Her Majesty's domi nioii- nuKle oi'daiiied or professed. l.\ iuivimtliority or jnri.<(lietion, derived, olnl- lenged or jjreteiided. Iroiii the See of R oiue. who s hall come into, or he. or reiiiiiin in any i)art (^f this real any otlier of iier Majesty's d( treason. It is plain, that 1: ui, or ions the Qib en had Avhen it w mn'nions, is ji-iiiltv of hisrh nv extended to all the doniin- !is uiixdv ; hnt some doubt hath been niaever diall my po- sav mass. or exercise any other part of the oUiee or funet ion ol popish bishop or priest, within tl minions thereinito l)el lawfidlv eonvicti'd. shall Ins icahn. o r tl le (in,<:in,i:'. siicii peixm l)einn- thereof l)e adnidued t O T)C prisonment. in .Mich place within this kin<;(l rpetui il uu- Majestv, b\ the adv om. as liei ICC o lu'r 1 rivy ("ouncil, shall ap- point. I am of oj.im'on this law extends to the planta- tions, the Knirland, and extends ti i>eniu- dominions ht'IoiiMinL;- to the real m ol priests, foi'ci liners as well a.s native; As to the (piestion. whether Her Majesty may not di- ish priests to be turned out of Marv- reet Jesuit- R land. 1 am of opinion, if the J esiul Ol not |uiests 1k' ilien.^ 1 ;iw. made .Icni/cn-: o:- naturalized. Her Majesty mav, bv I'^iil .Mar\l;ind ; if the\- i)e Her f'OlUllC them Majesty's natural l.oni sul.i<.rt-:. ilny ,;iiinof lie banished ironi Her .Majesty's douiiiiions. but may l„. proceeded against on the la-t lietore-unuitioned law, October IS, 17(1.-). i<;„,,.^ NoRTIIEV. I THE KIVg's PREHOGATIVE ABROAD. ^3 (7.) The Bi.hop of Lo^/on-. c,h.a'vatiom on a Law or y>njnu((P»-fhe.^>ippre.,..io„ of Vir,-, Sir: I have ...rei'ullv pcTused the Aot that is come ^om In^Mua. a,.i am very ,nn..'M,f the opinion of the Honorable Board, to .vhun. n.y most hnn.hio service -ukI t-xouse for not waitin- upon then.. I d.) fL^.i- [, ,'s -i very dangerous thing to exen,pt young people, (run. M- een to twenty.me. iron, heing liable to any punishn.ent "; ■'•■"■"""r ' ■" ^' ^^-'^ '■-•^-■"b- '- an indueen>ent o them to take it lor an indulgence to all licentiousness diirmg that time. That^ part of the Act, likcu isc. u hi..h n.akes the cler- gy liable to the same punishment with the lav offenders x« to expose them in the last degree, espedallv, sincj they are liable to be corrected by ecvlesiastii-al cen- sures. T. , If. LoNnoN. i^iLHA.M. January 2. 1707. Mr. Popple, ^'ecref>in/ to fJn('o„imi.^..lo,. /w f>r Tnoh OH,/ /'/oiifofinn..: (8) The Atfnno,/-(^, „,foI \'„rM ,r . •' '"'""■ .^"/f/n /x, opnnnn on the hnth >n hn,,hnnl an./ 1,, //., i ;,,„,,;,, To the Kiirht Hon the I ,,i,l r '>nd Pi..n, r ■ <-"nmss,oners, Ibr Trade ,,.,i.l.. II • , ,-"1111 II V" '■'■'■'"■""'•"" - i„.„.,„,,i .,„„,„,,,._ [,; ' I : i' t'tl IMAGE EVALUATION TEST TARGET (,V»T-3) W/ '^^. // <■ K° L< % C/jL fA .0 ^"^ 1^ II t' "^ IIIIIM li-25 iu 1.6 Vi A^ 'y. rm -^^ //^ /^S (?;;i Photognijihic Sciences Corpordtiun T-b ^ ^v ^^ -^ \ ^-i 4^^ ^\-^' 13 WIST MAIN STRUT WtKSTiR N Y I 4510 ( 716 1 in 4}03 ? ^ r H I m < 'I 64 OPINIONS OF EMINENT LA>VVERS. and what inay'ho fil lor Her Majesty to do in all the plantations on the like oceasions ; and I d portifv to your Lordships, that ])v law. wl oniost humhly man lere 'lies 111 testate in the plantations, havin<;- a personal tate there, and also any iiersonal estate, or debts owi here in En(>-land, the rifrht of j;Tantin,ir ad h'liiis t.) the Archbishop of Caiiter^u es- "g, ministration be istration be granted, in the plantation be), that a(hniiiistrator will a(^co ministrator in Eiigland. but will ment oi" just (le!)ts. if paid in tlw ord n-y ; and s, also, (^ untable allowed k'r the h nui- < i". that is to sa\ . *\w wl if ad vhieh may to the ad- the pay- iw allows lol" person.i! estate, in Ku'daiid and s lie-plantations, will be liable to all the iiitestat debts ill both plaees. ajid out of the whole, first, debts owing to Her Majesty, then judgments^ statutes and re-ogni/anees, th.-n bonds, then debis, without spe- eia lit .th f! iere jiiid iii '^ngland, arc to ati-fied ;iiid th.' ;eliuiiii^trator in tlu' |.laiitatioi;s will not be al lowed the j.ayiiieiit of au' debts, wjtl 11 ier< lout s|)eciality, if be debts of a superior nature uiisitislied in 1 ami for »'\('r\ administrator is boiuid to tal^ ^.ng- «' care to apply the int. 'State's assets to disel ordt'r the I large his debts, in the debt iw directs, ami it matter- not wlu'ther tl le s \\t ri' contracted in Kngland or the plantations. If there be debts of e(|iial natu tatioii-i. th •e ill Kngland and the plan- linuiistrator ma\ di-char wliic ilea-es. tun beliire he be sued for aii\ other of the Id ke iia- In- mile -ollle ( iitiicult\ oil admiiiistiaton '"It It h iH, iMor.' tlieiv than ill Kngland, and attempts ''•'''' '"•"" '"•"''■ l'.\- A.'ts of A-s.-iubh, i„ M.me of the •••r, in i'emisx h a- ||iautafl..iH. |.arti( iilarly, as I reiiieml "'■' •" ■'PI""P' >•'• 'Ik- 'dre.'ts in tiie plaiitatioiH, of p.-r- s«»us dying th.'ie, to thedi.sehaririii- d..bfs eontia. ted THE king's prerogative ABROAD. 65 there ; but those Acts have been repealed here, as being prejudicial to this kingdom. I um also of opinion, that when the letter, of adinini.stration arrive at the planta- tions, under the .seal of the Prerogative Court of Canter- bury, they are to be allowed there, and the authority of he administration granted in the plantations, from that tiini eases. u xt March, 1707. .^''"'"'^^'• II. The King's Ciril authority abroad, may be subdi- vided into five several divisions : y//,,,. of "the King's rights of ]>ropertjk-. ^ riM.y.ra naitu v.) , u;.,, ;„ , ,,,,, ;,. ,^^. To the >Lmpus of (Winarthen, tbe President of the Couned. Earl of Danby. My Lord ; I think it had b.en U-t,.,. if an .Hp.isition had been taken and the lorfeitmv..ommi,ted bv ,h.. Lord Haiti- incre, had been therein tbund. before anv g.ant be ma.k. to^nevv Wernor; yet si„..e .here is .one, and i, being .K-.Ht the Charter of Lord n.hi,,,.,,.,, „,., p' , '^ . " ^"7".'' order to varnt,. ,h,. .amc ■ (J,, .h.. .1, \ ^^^••'O'n'i.l, m Baltimore wa« heard, l,v counnd, ngainsMh,. K,,,/. , • ' '' . Oov..n,or r.r Maryland. (),. ,|„ ,.,,). , - ^'t'f-"— "t „, „ -ued an ordor of Councl, ti. , o ; , L "'" ^ V' "'"" I . . 'Iran iiy ;, ('()iiiiiiiM«ioii v h r' ■ lir.,) l«nd, !,<• Iraiiimntt.M to Lord Hvi1m..v .1, . s! . " 10 I ¥t 1 It '^ 6e OPINIONS OF EMINENT LAWYERS. in a case of necessity, I think the King iiiav, by his com- mission, constitute a Govei-nor, whose autliority will be legal, thoufrh he must bo responsible to Lord Baltimo.e for the protits. If an agreement can be made with Lord Baltimore, it will be .-onvenient and easy for the Gov- ernor that the King shall api)oint. An i"i luisition may at any time be taken, if t)ie .-rfiiture br not pardoned, of which tht^re is some doubl. j. Holt. Sergeant's L\n, June 3, 1G90. (2.) T/ie opinion of ihfi A ttonu-,j and SoUdior-Gen- eral' Xorthoj nud Hat-rovrt. thut th,r Queen, heivine/ a. right to f/onrn all h,i- people nw;/ rexNin,- n Gorernment uiuler a Royal Cluiii,r t/nit h,,d Utn ahu-atd. May it please your Miijcsfv ; In hunibiecbi'diciicc to yoin- .Majesty's order in Coun- cil, we havecoiisidorfd nftho annexed extract of a rep- , resentati(m [nnn the L.,nls Commissioners of Trade ami Plantations, upon letters received from Colonel Dud- ley, your Ma.jestx s Covernor of Massachusetts Jjay and New Hampshire, eomplainiiit: -f -reat inconveniences hapi)eiiing to liim in that -uvernnieiit, from di.sorders in llluMle Island. Cor uunt of -ood liovernment there; and also, upon letters received irom the f,ord Cornburv, your Maiest^ s Covernor of New York, complaining of like inconvein'ences Irom di>(,rders in the Colon\(ir Con- necticut, that Mud IJhode Isla.nd being Charter' Covern- • ments; and also, of th.' report of tlu' Attornev and S.,Iiei- tor-General of tin- late K,n^- Willi,,,,, m.i.I Chiren Marv, ma.le in .Inl\. IC'.U: ;,„d ue ,|o co,„ ni- with them in their opini.Hi^ iheivin m. nti..ncd. Ih.it u| an extrao,-- dimirx e\iircii,\. happening ihroui:!, ihr delaidt or neg- lectof a proprietor, or of iho.e appointed I.N hiin, or then- THE king's PREII0GAT1V=,,BB0AD. fff inal.iiity t„ profoct or .lofend th. Province under their govenunent, ,a„l ,l,e i„l,„,„„„,„ „„,,„,. ,„ n^,,;,, ^J ™- "..n..non( d.nger. vour M.ie.iv „,„,• c„,.ti,„te „ g" ernoro, .„.,, p„,„;,„, ,„ Clonv, ,s well for the civil "^ .."l.l.M, ,„,rt of sovennnent. „,,d for ,hc protection ,"" I--;-'i™ .iHT-of. end of ,„nr M„ie»tv' ,„b to Lore, w„h , In. „ddi,i,„ Iv. ,h„, „,,;,„„ ,,,i,^lt -nrneni .,ch (l„ve™„r is n,„ to .-Iter „nv of the rXa t.l, ,..hed pu,s„„nl ,„ ,„c c,,„,,..,„ ^ J^- """ ''""f"-:"'-" "f "'"' Enn-. NoRTiJEv. ''^IM. Il.VRCOURT. To the Kiirht Honon.l.Io I^nlHMt V.A r ,. <• , Karl M..rtMii..r, L,„-,l ]i,..,, ■■' .. ^, " "'"' t,,i„. "" ^-""■'^'"•^'r "I Great Bri- ^hyy it picaso your Lor,lsIii,,s ; In ohodii'iico to \< . i i • lonu.KvMr I, ,,, v n ^';'"'"""'■■l« -V'mfied .rwi„;L' ' , „";;•:•■";"• ;:: ,::;:::';-"-^ ^ ....,.o.„:',:,:;r : -".;:-'■::;;■ 'zr:^::;:::;:" ^ govmiinent t.. hi,,. I.v Ki,,- (|,,,i ,, T. '''* ■ ^'"^ ^ll.lllcs tl„. N',',.il(l, with 68 OPINIONS OF EMINENT LAWYERS. otlier deeds relating to Mr. Penns title thereto, and to the govtrnment of the tract of land on Delaware River and Bay, now called the town or colony of Newcastle, alias Delaware ; and he has mjide out to me hie title thereto ; and, according to your Lordships' commands, I have prepared a draft oi" a surrender of those powers from Mr. Ponn and others, in whom the legal estate is, under hiui, to Her Majesty, reserving to Mr. Penn his right to the soil of those colonies. In the. letters patent of King Charles the Second, there are granted to Mr. Penn all mines of gold and silver in Penn-sylvaiiia, which, he says, he cannot 'surrender to the Crown, having made several grants thereof to several pe.^ple, which are not in his p(,iver; and therefore the surrender of them is not In the draft prepared, although, if it be insisted on, he may surrender and as.^'ign what is not granteorgia in America, and fully authorized b\ them, do hereby si- nify, that we are ready and willing to make an absolate surrender of a 11 the powers, rights and trusts vested in the sai.l trustees by His Majesty's Charter, bearing date theOthday of June 17:52. with-.nt anv ..onditions or lim- itations : humbly n-commending the rights and privileges *•' >'"' inhabitants of the .said Colony to Jj is Majesty's most 'rracious protection. •' Deet -iiber \\) l?,")! c„ .^ ') '^•'Jl- '^11 M'TSBl'KV. ifoHEK I TmcEV, .Ion.\ Frederkk, Sami,. Llovd, '■''^"'ard jioopfr." Uhich being taken into con id..,;,!!, •,. x,.nr Lr.rdships were thereby pleased to refer the said proposal to us to '•".is.der therc.f and report tu your Lonlships, in what manner the s.me may 1^ mo.st effectua!i\ carrie'"h>' held of tho Or.,,,-,, ,1 ''"" """■"■ "' I* power ,h V , '■■ r'"*" "'""'" ■'""•"•"'■''■ -'«> "»• >«■.■". ol t,ve„tv.o„e ve, ■' , , . ' .■■",''' """ '"'' 1-ve ,^,ver .,f „,,;ki„,- :,," T'''''"''"'^ *"''■' i^ind, ,v„. ve»l«l i„ ,1, - '"• '"■"""■-'■iK'"h "f eho '•■ "»ko ,ueh .,nen,U.r a,„l <^ , • '"' ''""'■'' TiK. proper „K.,h„.i„f,;;',;;,'';"i"~'"- -■■-■■ I,;':;,,;'::;:; ;::;: -■■'" ■■'■•• if f 72 OPINIONS OF EMINENT LAWYERS. •' 1 i • ■ their lands and territories to His Majesty, as well the one-eighth derived from Lord Carteret's grant, as the seven-eighths included in His Majesty's said Charter, but subject to such estates anti interests as the inhabitants there have in ony of the lands, by virtue of grants from the corporation. When such gi'ant and surrender shall be made, we hninbly conceive His Majesty will have both the gov- ernment of the Colony in his own hands, and the lands and territories thereto belonging, subject to the grants of any part thereof noiv subsisting ; and as to the said one-eighth, subject; to the quit rents reserved in the Lord Carteret's grant, and may put the government thereof on .such a foot as His Majesty shall, in his great wisdom, think proper. D. Ryder. February 6, 17-52. AV. Murray. (•J.) T/ie (/phiio/i of the Attovuey-Geiieral Northey, an the .surn/ider of the Bahartui Charter. Whitehall, Dec. 10, 1717. Sir : The Lords Commissioners for Trade and Planta- tions command me to remind you of my letter of the 21st of the last month, which was to acquaint you, that there being six proprietors of the Bahama islands, whereof two are minors, the other four have executed a deed of surrender of their right of government to His Majesty, and to desire your immediate opinion, whether a surrender executed by four out of six, as aforesaid, be valid and effectual. Wm. Popple. [Tile Attorney-General's report upon the surrender of the Proprietors.] 1 am opinion, that a surrender by four where six are seized, can only convey and exHnguish thereby, four I TH» turn's PMsoeiTim abhoao. 73 part, in ,ix of wLat the parties enjoyed. However, Hi, Ma,„tr bemg ent.tled under four, to four part, o; the govenunent, wh.ch i. entire, he may execute the whole And I do not l<„„w, that the other two can be cona t ner« with hia Majesty in ^ovornim, ■ for „l 1 •.11.1 tl„t n u ouicrning , lor which reason, and that there nught not be an extinguishment, by sur Uown of the four parts might V more proper December 10, 1717. K„w. Nobthev. S.» : The L„rd« Commissioners for Trade and Planta- t.ons having, by your letter of the 13,h February laT, required our opinion on the petition of the Earl of Suth- erland praying for a Charter of certain lands Iving upon Delaware Bay. in America, couimonlv called he Three Lower Counties. .Iiether it be in the power of the Crown ,0 dispo.se of those lands pcitioned for ■ wliich petition had been referred to their Lord.sliip, by it M^sty; and His Majesty having been also pleai-d to refer the said petition U, us. we liave made o„r i^' .t oH I "^''''■- ""•' »"'-". '■"- sent via «.». of the said report, which may serve tor an a'nswer M r'Tr""^" '" "» ''>" "«"■ Lordships. October 28. 1717. £„„.. ^J^^^^^ W. Thompsoiv. To the King's ino,st excellent Majesty. May it please your Majesty • signitiedf' "^'":r '" "'"' "•"■'■'■<^'" ™™-"*. -.g...(ied to your Majesty's Attorney-General, by the i-.. ¥ 74 oriNIONS or KMINENT T, WV^'f.RS. I i Lord VisTOunt Stanhope, when Seeretarv of State, on th5 memorial of the Rioht Honorahle John. Earl of Sutherland, and your Majesty havinj? been ])1 eased also to signify your commands hy Mr. Meth'ien, when Secre- tary of State, to refer the said memorial to your Majes- ty's Solicitor-Cfeneral, we have jointly considered of the said memorial, whereby tlie said Earl of Sutherland represents to your Maj\>st\' : that there are considerable arrears due to him, since the revolution, amounting to above £20,(t(»() ; that he has always testified his great zeal and activity for the Protestanr succession, both be- fore and since your Majesty's hai)py accession to the throne, and given singidar proofs of his fidelity and affection to yom- Majesty, by his services in North Bri- tain during the i-ebellion there ; in consideration whereof your Majesty was pleased to express your liivorable in- tenti(ms of gratifying him upon any occasion : where- fore, he most humbly pra\s your Majesty will be gra- ciously pleased to grant him a Charter of certain lands lying u])on Delaware BaA-. in America, conunonly called the Three Lower Counties, which he represents he is ready to prove do belong to the Crown. And we have given notice thereof to the persons concerned for Wil- liam Penn, Esq., and several mortgagees and purchasers under him ; and also to the Lord Baltimore, who sever- ally claim title to the said lower Cinnities, being called Newcastle, Kent and Sussex. And Ave have heard them and their agents, thereupon, and we do most humbly certify your Majesty, that the said William Peim is en- titled, under the griMit of King Charles the Second, to the plantati(m of Peiuisyhania : but that these counties are not included in such grant, and his title to Pennsyl- vania is not now contested. •I'HE king's PREROGATIVK VBRuaI). 75 And a.- lo youi- Majesty .s title-, whioli tlie Earl of Nutherlaiid has un.lortakfn to make out, to the said Throe Lower Co...,.,es, he lias insisted that the same were ffamed by con<,,K-st, hy the suhj.cts of your Majes- ty s prodoeessors, or <>,nmted to your Majestv's predeces- sors by the po.ss..ssors thereoi; and that thereby your Majesty's predecessors becau.e entitled t<. the same for that a subject of the Cruu., cul.l not make fovei-„' ac- MU'sitmns by conquest^ but ti.r the benelit of che Crown • -"cl that the length of possession will be no bar to lie Crown : that f ^ -everal years past Mr. Pena hath had the possession ol' the sai83, obtained a warrant from the then King Charles the Second, to pass a patent wU.eby the safi Three Lower Counties should have I.en granted to the s.i d then DuKe of Vork, and a copy of the bill to pass mt« a grant m April 108:^ to die said James Dul^ of |<>rk oi the saul Three Lower Counties, has been pro- duced by the said Karl of Sutherland ; and it is al^ l^.une was n™.pas.ed into a grant; and that If the -mchadpasseomtoa grant, it would m M..lnn.s title to the said Three Lower Counties to be goc^, tie title of the said >lr.I>enn under the Duke of i k en.g p... ,,,, to ,be title of the said Duke of W ,,.,,, the same did remnin in ,be .said Duke oi lurk, and is. eonsenuently, now in your M.ye«ty "^1 Td OPINIONS OP EMINENT LAWVfiRS. ii • J f-. And that your Majesty's title further appears; for that after, in May 1G83, when the rhen Lord Baltimore, by petition, opposed the passing the said bill under' the great seal, Mr. Penn then appeared against the said Lord Balt.nioiv. as ager.t for the Crown, and not on behalf of hunself; an,l Mr. Penn, under hi.s hand, has declared that y.)ur Majesty's royal approbation and allowance of the Deputy-Governor of Pennsylvania, and the Three Lower C,)unties on Delaware River, named by him shall not he construe,! to diminish or set aside the right claimed by the Cro^vn, to th,. said Three Lower Coun- ties. Besides, the said Earl of Sutherland insists, that in the giant of tiie sai.l Duke of York, in 1682, to Mr Penn, of the .said Three Lower Counties, there is a re^ servati.m of an account to l)e ma"! tl„. year K'.SL', accrdlng to the said re«o,^•ati<>, ' and tliM(, ,f the said Karl of Sutherland cannot, by vow Ma.iesivN li.vor. be entitle.l to the ,.«id Three I ower Couiiti,.s, Uv humbly prays }„■ may have the b(^,.fit of the said accoimt. T-i n.H«vr (.. wl.i, I,, on fl„- Ixdriir ..f Mr. P.-nnV mort. gag.Ts and ,,t|„.r puirhasors ,„Hl,.r hii.,, it Imth Ivon alh'g.-d, f|,a( (h.. Ia(.. King .lames (h,- Second, when Duke u( York, was .M.-izcd iu iW of the .s„id Thr.M. L<,wor Counties: :.,„i as on.- argument t<. prove such seizin, they have produced I..»J,m-s juJent. datcM the L'lUh day of .June, 2(i Car. II . whereby his .said late Mnj<.stv King TH« KINO'C WIBIIOCATIVI JimoiB. 77 rMkfVv" ^^^.<^"'*^ *» the .aid Jame,, late m.,„ land of New England, beginning at a eeVtoin place called or known by the narae of St. C„,i., next ali" ng to New Scotland, in America, and fron, thence Z tending along the ,e,<«„t „„u. , certain place called Pema<„,,„„e „r Pemaqnid, and »o „p the river thereof, ward, and extending from the river of Kinebequim and "o upward, by ,h« d^,„t oo„,«, to the riv^r Zna,!. ut r f H ' -T""^ '"""•' '' "^^ "f Matewaicfc, or LongI„a„d^„t„a,e a™l being toward, the w„. of Cape Codd and the ^arro Hig^^, ,y,„^^ J and, ,K.twec„ ,1. ,„o riw™ the,, call'l o^knol b" tte .eve,« „„,„„ of Co»,,ectic„t and Hudson I v,^ ^g^ther „,,„ With the ™id river ,^»,led H„d,o„V « v ' .liver to the ea,t .,de „f D,|„«.„, ,^ ,„,, «-e.ev«ral i.,.„d. calW or known bv the n Ic ^l::""l ";;" f"-'^''- "«--e N.nt„ko„. „ (.ether «„l, all the land., i.l.nd,, ,oil,, river, harl.„„ :;"""■ 'T'""' 7"™«li'-» and h..r,.di.,„„e„„ t,, „„: ".•i-r.a.n,„g. „i,h their and every of „,..i/.l -. a".lallhi,«.:dl.,eM,ies,y..e,„„..' ;, •--■"•"I.Vnem,.,v„„,a^.,clain,andde„,,,,: <^ ' ... ..the .a,d land, and pre„,i„.,, „, „„, , ,„. ,„.. »1 thereo,. „„d the reversion and .^ver-ion. r,.,„„i, der ::''■;■ ' " •7"-"- -■'»' .earlv a , rent-, n.ve„„e» ,„kI poOu .rfthe pr,.mi«„, and ,., ..very 'If I! ■-■■•- r-| - - ;- » ; I 78 OPINIONS OP EMINENT LAWYERS. • ♦ part and parcel thereof; at and under the yearly r.ntof forty beaver skins, when they shall be lawfully de- manded, or within ninety days after such .icniand, made with powers of government ; within the descriptions of which grant it hath been agieed b\ both parties, that the said Three Lower Counties a-e not contained. But, on the behalf of Mr. Penn, it hath been insisted, that by the general words, " together with all the land-s, islands, soils, rivers, harbors, &c., and all other royalties,' profits, commodities and hereditaments to the said sev- eral islands, lands and premises, belonging and apper- taining, with their and every of their appurtenances," the said Three L(jwer Counties did pass as belonging to the premises expressly gianted by the said letters pa- tent ; for that the Three Lower Counties were enjoved by the said late Duke of York, together with New York, which was granted untu the said late Duke of York, un^ til hi> granted the same to the said William Penn in 1()82, by the grants hereinafter mentioned, which seems dillicuh 'o US to be maintained, since the abutUl in the said letters patent, exclude the Three Lower (bounties ; ')ut tliey presume tlie said late Duke .)f York might have some other grants thereof, which Mr. 1\ iiii might give an a( .ouut of but cannot, being under a lunacy. And we do further humbly certity your Majesty, that by imienture dated the 21th day of August, l(i,S2, made between the said la'.' Duk.. of V,,ik ..f the one part, and the said William I'mu .,| iIh-oII,,.,- |,;,,t, ||,e sai(i late Duke of York, for the cousidcratious liirnin niculioned, f N,.\vcastle, ofh- erwiM" calle.l Delawan-, and ail tha ira«-f of land Iving within the compa.ss or circle of twt-lve miles about the THE king's PREROOiTlTEiBHOAn, Jf -ame, sit.at,, h,„g „d l^ji^g „p,„ „,e river Dela,vare and all „la.,d, ,„ the «aid river Delaware; and the' »a,d nver and ,„il (hereof, King north of the southern. .no,t par. of the ,„„, oirele of twelve ,„ile,, ahoot "e a,d town together with all renu,, service, royalt e, aneh,,es d„t,es, j„risdicti„ns, libertie. and privilegl' '"77 "''""«'"''■ ""-' "" "- --'e, r,«ht,'title, ' ,- "1 he .„d late I),.ke. of, in or ,„ ,|,e s„„,e, ,r to any part or parcel thereof, „t „„d „„der the ve rlv re„ , f hve shdhng,, with . covenant «,r further aJsn^rce and the sa,d h„e Dnke did therehv oon,ti,„,e ZZj point Jo Ml Moll 'in.l l.'„l. ■ . I hen, hi» ,„ /•'PlTian, Harmon, or either of them, hi» , ttoniey, with lull ,„„.„ ,;,, j,,^ ".'"U. and stead, ,o deliver sei.in of the or, , ises ^TCr 1'!'''^'^^ •' ™.nre, to '„,:':,: or,r- ''";''""'';■'"■ A"" "- "".'Hate UiiKe ol ork, l,v „,io her iiideiiliir,. hearing date the said Dn 'tf'^S'o T " "'"■' "--"- Venn of th .„,;,""; '"",': ' ""■ ""'' "■ ■" -- "'..ii..;::. .Ti :,,7::r ;■""-"' ♦he sni.I Uil- i, ^"- <""•'" and c.ndnn unto .»:^:i.:;;Za:;:;v;:i:n::r""":" "■•■ IVlaware. and extending south to the Ul,„re Kill I,,,,:,, ,„„.', " '"• ■■"'"""■ '" '"■ '-longiuK i.nio Ihe '"" ""' '""""'' •"■"■'"-'"> . '"Kether will, a ,„ ,„■ ust ill 80 OPINIONS or KMINKNT LAWYERS. H ■■' I r. minerals, and all che estate, interest, royalties, fran- chises, powers, privileges and immunities whatsoever, of the said Duke of York therein, or in or unto any part or parcel thereof, at and under the yearly rent of one rose ; in which said last-mentioned indenture is contain- ed a covenant, on the part of the said William Peun, his heirs or assigns, within the spjice of one year next ensuing the date of the same indenture, to erect or cause to be erected and s-t up, one or more public office or offices of registry, in or upon the said last bargained premises, wherein truly and iaithfuUy to account, set down and register, all and all manner of rents and other profits, which he or they, or any of them, shall by any ways or means make, raise, get or procure, of, in or out of the said last bargained premises, or any part or parcel thereof; and also, at the feast of St. Michael the Arch- angel, yearly and every year, shall well and truly yield, pay and deliver unto the said late Duke of York, his heirs and assigns, one full moiety of all and all manner of rent**, issues and profits, as well extraordinary as or- dinary, as shall be made or raised u()on or by retison of the premises, (,r any imrt thereof; with power to the said laU? Duke (.f York, his heirs and assigre^, in case the same shall !)e in arrenr twenty days, to enter in and upon the same premises, or any par* thereof", and there to dis- train, and the distresses to detain, unul payment of the said moiety and ariears thereoi; t,.h,H.,,„,,™,„s M,. «,i,, Tl„.ee LowerC^.n.ie, T T" ' '"" ""-■ ■•">■<■"■•>■" t <'™iMt ...t.„,i» ,„ r; to what ,s „,nl,„l..,l i„ ,1k. I„s, rooi,.,l ,.™„t ^ Co„„o,I „f N,.„. y,,,,, ,|„,..„ „, j,,,,,^, ^ ' f -■' --l.or, M82, r.,.i,i„„ „,e ,,m ,„„ rccla,! i„,lo „ ot '•".V .-t.»l.<.,l ,.r the. .„i.l tt-i „P..„„V ,.i..|„ „tl„ t ; """r^"'? "• '•""'y """ ''-1-= the r„, NW "'■'■'■"'•'";'"■'"■ -!--"-ato. n,.,l otho,- nffi. n " "' -^•^'"■»»>l<'. .M. .t„„o.« l),.,,lo. ,,lia« HI,,,,., Kill „t men,,,,,,,.,.,,, |,r,.v,.,„ .•„,,■ ,1„„|„ ,„, „,,„|,|,. , I, -;^ai(l indt'iiturf's, w|,i,.|, ,,,;.| , -^ the Oot„hor I7(.l '"■''*''■ "'•'^- ♦'"' -'tl' of (lelphia. ' ""'I" IVnnsylvnnia, won> trnuifo,! ... r "- "* i-irH;«on,e of w|.,<- "" '""'''" "'"' "-> iH »i 81 OPINIONS! OF EMINENT LAWVERS by the said William Penn, and the rest bv his agents or commissioners, and all sealed with the seal of the said Province ; and that he halh seen great improve- ments in building and planting, by pers(ms claiming nn- der such grants. That many of the said inhabit"ant,s, who were reputed to ha^•e settled upon lands in the said Lower Counties, by virtue ol' grant;--, or patents and war- rants, either from the Swedes or Dutch, when the said Counties were- in their hands, respectively, or from the Governor of New York, under the said late Duke ( f York, when the same was in his hands, did, upon making their accounts up of «piit-rents dvi from them to the said William Penn^ for their lands, jiccept new patents frtmi the said \\'illiani Penn, or his agents, and have since much increased tlieir ii.ipnnunents thereof, both in building and planting. That, he hath seen patents or instruments for conveying lands, in the said Lower Counties, to divers of the ancient inhabitants thereof, as well from tlie Swedes oi Dutch, as the (lovernors of New York, under the said late D.ike, as also, -onnnissions un- der the hancls of si..„e one of the said Covernoi-s of New York, constituting magistrates and ofhcers in the said Lower Counties. That, he believes, tliat the patents of land in the said Lower Counties, granted by the said Governors of New York, weiv registered at New York, and that, if .search were made in tlie Sc. That, he believes mudi the greatest part of tiie inhabitants of the said Lower Counties wl..- have land t! -yv. hold the same by title under Mr. IVnu. an.l that several who hold land there ly ,,ther title, have delivered tlie same up, and have accepted now grants from Mr. I'enn. And it a so appears, by !!,<> alhrmution of Robert IIi.scox, a Quaker, THE king's PREROfldTTi-u .n., 1 ncKJCiATIVE ABROAD, CQ that the N,™1 Store Companv, i„ Bristol, have, by their renn dljla.re, of land ,„ the County of Kent and .'-'Mm,. he„.„„, „,„, ,„h„ i,„„,„„,„j„, „,._j ^^i '-O;. ... on the. „,an„f,„.„.e f„ ,,„„in, he„,p. npwa Tf -t'" .;'■"' "';' *-""«" l>a.-., and th,n he H„:; '" ' ""• '" "'" "'•■'""K™.'-... and e„,- • t" , 7"; '"■"':«;"""■•■•■ "'■•' "- no benefit hath ;' " ""■'! "• tl'" -,<1 Company, fi„. t|,.. „„,„ . „, C...n,t,e, and theto,.., those ,,.„nt..t, en ,:;7; '™'' '>■■ « ■'"»■ :^.M <■! Ma: :,n' ;:;'::■";" 't -■.■-;;:i;:i::d'rjtr';,:t"'"'^''^^-'- i- n':,;:: ;;;: Kn:7;::;::''';r'r"' ''■"^'" •I..'. detation, th,.n.in :;,""""'■ '■"■ » >-»"^ M^,,.::: :;;:,.;-"' ' - "'■*"• -i^-'^ iMa a,, ';':;■;,"■"•" t'J H OPINIONS OF EMINENT LAWYERS. a w- New Jersey, in America ; and all that river called Dela- ware, and soil thereof, and all islands in the said river ; and all that tract oi" land upon the west side of the river and bay of Delaware, which lieth from Schoolkill Creek upon the said river, unto IJombey's Hook, and back- wards into the woods so far as the Mincpia's country, and from 13oi.ibey s Hook, on the said rivtr and bay^ unto Cape Ileidoi)en, now called Cape James, being the south point of a sea warmet inlet, and backwards into the woods three Indian day's journeys, being formerly the d under the yearly rent of one beaver skin, when' demanded. On the behalf of Mr. Penn, it is allege.l, that it Is probable the said bill in 1083 might have been passed int.) a grant, for that they produced from the Hanaper office where entries are made of grants that pa.ss the Great heal, a certificate of an entry in that office, in tlie words tol owing, viz : « April Gth, 1G83, a grant to j^^unes l,..ke of York, of the .,wn of.Newcastle, .has Delaware. ...tuate between Maryland a u.l x\ew Jersey in Auienca to him and hi.s heirs threver," such entries" m.t havmg been made at the Hanaper office, but where et e,s pa ent do pass, which patent nright happen not to be enroUed. us .t i.s not, by the neglect of the .six Clerk called the Uuling Clerk, whose busines.s it was to ..ee tie same enroHed. „ .f'l'' .t" '" ''"' "''J"''«'". 'h"t it t\„. „„„„, „.„,, ,,„_ "lk.,1, ,. ,|,c. ,„„e i> a ti„, .,„„,„„,„, ,„ „,,, ^,^,,,, " M;-. IV,,,,, an., .h„t Mr. n, ,„..,.,,„| a. „„„ ,J ll,e ( ,„w„ as,u„»t (i,„ L„r,l l!a|,i,„„,,, ||,,v ,|„ |„„ , ;;-tH,,,tM,.,v,,,,Havi,,,a,,a,,,,,,,.,,.;,a,,' "".":;",'"■""■'' I>"k.-,wi, I,,,v,. i„ „„.,,,;, „ '"•'"l:'-'l'"'tl..^|..-.-.»u,„„.asalwav«M„l,.,...,| ' " ; -""■•■-' Win ,..,.n„;a„;,,,' ,: , .. e satisfied of the extent of the letters patent formerly granted to Cecil, Lord lialtimore. wherein the said toMii and ad.i.uent country is alleged to be comprised; which .said petition being refrrred to the then Lords Commis- sioners for Trade and Plantations, on the 13th of No- vember, KiSo, ih..i,. Lordships made their report, where- '" "'<'.^ 'vjH.rt that : ■ /br. i„g ex.mine.l tl . matters in •Iifierence between tlie Lor.l nahi.nnr, ,„d William Penn, Ks,,., „„ behalf of His then Majesty, c<.ncernin.' a tract of land called Delaware, they found the l.i.d "i,,. ten.led to be granted tc Lord Baltimore was only lands uncultivated, and inhabited by .savages; and that the THE king's prerogative ABROAD. 87 tract Of land then in .,i,p„te. ,.„ i„,„,.^, ,^„_, j IT 7Z '""■°" ""^ '''"' "f ♦>■» Lo'^ Balti- more » patent a, ,t |,ad ever been since, to that time hat the r L„rd,l„p, Innnhlv offered their opinion that .orav„,d,ng further differen... the tract o ,„„' I •,! T-l^lf . ,I"r ; ■"'" '"■'-"-■" '^"i".Je; nnd that one half thereol, ly.ng towards the hav ..f Delav-ire and the eastern sea, he adjudged to helong to hi,rMl:t; and the other ,.»„•,„ I.„rd Bal,i„,ore ;" Vh.ch rep ttb hen Majesty was pleased to approve of and . ord"! «.e sa,d lands to l,c divided accordingly, and th» Lord BaUnnore and Willia.n Penn required to vielj due .IT d.ence hereunto; which report was also;,,nfirn, I „ Seal, as on Mr. Pcm'.s behilf ;« , . beings.opped,asuu.t,«:sjrt: ;!:;•;''"''' .™.t,a«er that matter settled, wtri:;:":: -a:^::ss'Lt:e,::"s:;:d"!'™r"'^^"^ Charles, ..:;henu,e;';rti,:^;;:;:;: :::;$:- land ; hut tho ontrv in Hu. H l- ^ "'' been made when the Priw < i , ^ ^ c-at,scai,..hep„::n:;;;:;x,;™ '-"""■'"^ 4:.;t:;:irw:;,:"2r::-;v;"-- -b-o, that your Majesty., title si;:;;:''::::— i 88 OPINIONS OP EMINENT LAWYERS. « hy the Court of Chancery, before any grant should be made of the premises; and if any g^ant should be made, we most humbly submit it to your Majestv, whether the claims of purchasers or grantees under' Mr. Penn, who have improved part of the said Three Lower Counties,' should- not be established ; but if Mr. Penn should have' a title to the Three Lower Counties, bv virtue of the two grants ,uade to him by the late King James in it, what otlu-r ,eme,ly is left to the Crown, fur the recovery of their debts in those i.slands. We have considered of the matters so referred, and THE king's prerogative ABROAD. 89 are humbly Of opinion, that no writ of exten. out of Hi« Majesty^ Court of Exchequer here, nor any process from the Court of King's Bench, can, as the laws of those islands now stand, be executed there, they being govern- ed by laws of their own, subject to His Majesty's order m Council, and the subjects there are not amenable to the Courts here. And we .tre of opinion, the only remedy the Crown has lor nerec of their debts in those islands, upon the foot o the present law, is by proceeding upon proper suits, to be instituted in the Court, there, accord- ing to the course of those Court., an,i .ending thither the proper evidence of the debt, unles. His Majesty shall think fit to interpose, in his legislative cu^-acity, and by an order in Council, make a new law concerning the method of ^■.co^■ering the Crown debts against the in- habitants there. By this means, His Majesty may, if he think fit, give such force tc extents and other processes out of the Courts here, as he shall judge convenient; but whether he single instance of inconvenience to the Crown in the case of Carey's debt, mentioned in the memorial, is a sirfficien ground to make any alteration in the laws ot those islands, is humbly submitted. D. RVDER. August 12th, 1737. '^- ^'^«A^'^'«=- 18 J I' ii 90 OPINIONS OF EMINENT LAWYERS. (8.) Of the Kim/s rujht to the islandi in the river Delaware, hj the Attorney and Solicitor-General liay- inojul and Yorh, in TTlil. To the Right Hon., the Lortls ConimissionerH for Trade and Phintations. May it please your Lordships ; In obedience to your Lordsliips' conunand.'i, signified to us by Mr. Poppk', by his letter of the 3()th of June last, v.'hereby he transmitted to us the annexed copy of two clauses, extracted out of the Charters of New Jer- sey and Pennsylvaniii, whereby the boundaries of those Provinces are ascertained, and thereupon desired our opinion, whether Delawi-re River or any part thereof, cr the islands therein lying, arc, ))y the .^aid clauses, conveyed to either of the said Provinces, or whether the right thereunto doth still reuiain in the Crown l We have perused the siiul clau.ses, and have beei: attended by the agents of the parties, who claim the Province of Pennsylvania, and their couM>el, wIm. have laid l)elbre us a copy of the letters patent, granting the said Pro- vince, and have heard what hath been alleged on both sides; and upon consideration of the whole matter, are of opinitm, that no part of I)( lawnre River, or the islands lying therein, are comprised within the granting ^'ords of the said letters patent, or of the said aune.\ed extract of the grant of New .Jer«-ev ; but. we conceive that the right to the same still ninams in the Crown. 15 our |{ WMOND. I'hii, Youkk, August 5th 1721. THE king's prerogative ABROAD. 91 (0.) Of the Kbu/s right to certain wmte lands in Nhw Hamp,hu-e, by the Attorney and SoUcitor-Getieral, Mmier and Murray. ^ [State of the ca.se with respect to the property of the waste and unimproved lands in the Province of New Hanip,sh,re within the limit, of the grant made by the Council of Plymouth to John Mason, in the ye^ King James the First, by let^rs patent, dated the 3d ot November 1G20, granted all that tract of country 4) and 48 degrees north, to Sir Ferdinand Gorges, and h,rt,nnu. other., under the nan.e of tl. Cc^ncii e«- tabhshe,! at Plvn.outh. in the county of Devon, for the planting, ruling and governing New England i. America. ' The C,.,„„.ii of Plv„,o„,l,, l,v i„,lonturo under their co„,,n.,„ „,.„,, ,|a,e,l T.h Nov,.,,,,,,., X,-,,, ,„„„,, „„,„ ,.„,.,„ i,„„l, ,„ N,.w K„,h.„,i, Ivin, „,;,„ ,he L "■"""'"V '■>»'■• r.n-.hes,h. ,h,.,.e,.f..,',„|,vr '•■"■;■',""■' "■ il ll'"H-.,.or,. „, ,i,., |„.,|,T,„" 1^' l.r», ..„,,.»„.. or .>l„.a,,,„.a,Ki„.,, ,u,f„," "^ZJT' f "■"■'-'■ ....,„. f„„„e. ■ ' ^ • •""' i"'" .h,. I „...„„,„, . " "-;•—■■■■ -!.•« '«• -i„.l ,„„| ft,,,,, „„,„,„ „, iroiM i'lsciitnwax |{iv,r. ^'"'lua Tin. ..act oln.uutry was, i„ cou.x.j.u.nce, and by ox- 92 OPINIONS OF EMINENT LAWYERS. ' i press direction of the patent, called i .v.- Han,pshire ; and the grantee obliged himself to est-Mish sucu gov- ernment therein, p. should be agre^nble, a« near as might be, to the laws and customs of the realm of England, with liberty, for any person aggrieved, to appeal to the said Council of Plymouth. In consequence of ^'lis grant, Captain Mason was (a8 IS alleged by him,) at considerable expense in sending over persons to plant and settle in this countrv, and in erecting forts and oth-r buildings and habitations ; and It does appear, from several testimonies made use of in some actions brought by his grandson against the very persons he had sent over, that considerable improvements were made. In 163;',. the Council of Plymouth, by letters patent dated tlie 22d of April, cmfirmed their former g-ant of New Hampshire t« Ca^.t.in Mason, with an extension of the hunts, which, in the .said letters patent, are described in the lollowing words : '• All that part, purpart an.l ,x.r- tion of the niain land of New England, beginning from the nuddie part of Naumkeck River, and from thence t.^ proceed eastwards along the .so„-coast to Cape Ann and rouu.l :.lK.ut the snuie to Pisratuwav Harbor, and .so for- ward up wifi.iu the river of Newwickwannook, and to t»'^' »"'tbcst head of .be .sai.i river, and from thence northwnni till si.xty miles be (inished. Iron, the first en- trance ..f I'i.seatawny Ih.rbor and also fn.m Na.unkeck through the river thereof up into the land west, sixty mde>, Iron, w'ueh periul to eros., overL-nd, to the sixty miles en.l, acc.unte.l from Pis<>atawHv. through New- >vu.kwa,ino.k River, in the laud uortb-w.stward. as iiloresjiid ' The ea.stc-rn huul.s ot the M,„ud grant appear to be THE king's PRER'^-ATIVE ABROAD. 93 the same a,s those described in the first, but are extend- ed to the south-west a,s far as the ri v.r Naumkeck, winch I.S about twenty miles to the westward of Mer ima k he western limit of the f<.mer ,rant, which tat of country ,,m, between the said two rivers, and extend ">g o three m.lcs north-east of Merrimack, had been ^t.i by the C.nmci, of Plymouth, to the Mas a r ^t^ Co my, .n the year 1728, prior to the first gra t to Mr. Mason, and ,s now part of that colo. v It IS alleged, that this last irranttoMr\r r.^4:^ ] 1 fci'int lo ivir. iVlason wnq lictmn ,,„,| government; but „„ nnch OLarter „ thi, nppeara on record. In the .„„„. vear lf,3.1, Caph,,., Ma,,n, l,av ,„ j,,, mmts n K ''-^ ' '""^ tenements, and hereditu- Z '" ^^'^^ """.pshire, except some inconsiderable 7'''V'''-'"''''''''^-''''^<''h.H Tufton, tbe brother of .i<>hn.. on and other persons numtionet, in mJ^^' I rxmtl... death nf (',,.,„•„ ^V,^,,„ . or soon after, NeNv 11 nM.wl.i.. . ■ "•'""' .^ '-'r. but he dviuK without iss,,.. fh,. b...,...- 1 ^ m .. 'in. iiK iinnia ion o\ (.|- (,, i;, . I ""' -""""K ..r „^.,. (ill i,;,-„, ii„, „,„.,„. ', •■"'" ■—I.-.. l.|)„l,er. .,„|,„ M .: ,"' 94 OPINIONS OF EMINENT LAWVERS. ,? * , 11 no redress could be liad. ombezzled, imd sold his stock and effects, and put themselves under the government of the Massitchusett.'i ci)lony. who then exercised juris- diction iu New Hampshire. 8oon ofter the restoration, Mr. Robert Mason (for R. bert Ttifton, the yomi than what liatb been derived b\ die government of Roston. in virtue of their iinaginarv line, which title, as it has, ly the .-[.inion of the .Jiid^e here, been ult( r oct aside, so the agouts of Boston have ■ THE king's pbhiogative (bhojd. 93 consequently ,li»„„„e,i „ny riKht, either in tl.e »oil or govern„,e„,,fr„,n the three n„le»'li„e .aforesaid; and a grants, Iron, the great (>,.,noil at Plym.mth, for thi, met, and were at very gr«.t e.,.n,e „,»„, he J -oned a la.s(,„g eon,|,l,„„t for justice hv the ,„id Mr M,s<,„, ev.. .nee tl,e r...,r„,i„n, however, to prev „ ' , • *; ■ ■^■'""'". ""■ >!"-- Hght he alleged to th/,„il we have oh„«e,, Mr M. ., to deehu-e „J, ,„ ha d i of June 10,9, nor n,ole,t any in their p<,,,»„,„i„„ ,.„, ^^ "'" ';,' < "■ '"" '""1«- -t titl<. t„ then, and het -- '— .r, pr,.vi.U,, they would pay unto him by fu.r agreen,ent, n, lie,, .,f „„ ,,„„_ ;. /^ ^^ or orchard., a,„l,le ,„. ,,a,s,„re, whieh have la-en i,„ prove, l,y,he,n,whieh he will a,.e„«ho,,,d,. ho,,;, r::pr:r:r::,:r;:rr;;;: f^" "•"' '■••'■ -il" "11 ,lif!e,en,...s. if v„„ ,.. , ,„^ ' ' yon are I., se„,l ho 1, , ■ , ' '" '' '""' .ta,..,i., , her ,"".'^ "'"■'•>■"'"' '"'l»"'i"lly ^- .1,^ ;::;;,".,:,::;::;•■;:;"';■ "-". i ■■ ' ! I i .;.i1^tltWff»' 'mill i 96 OPINIOiNS OF EMINENT LAWYERS. In 1680, Mr. Mii.son went over to the Province to pmseci.te his title, and although many of the inhabit-' ants at first appeared willing to submit to it, yet, as the members of the Council were proprietors of the greate.^ t part of the cultivated lands, thev made vse of all their i.iterest and the influence which their situation and character gave them, to prevent his getting posses- .sion ; and they so far prevailed, that he was at length obliged to commence suits in the Courts there, against Nome oi the principal proprietors. While these suits were depending. Mr. Mason, in order to strengthen his niterest at home, made a surrender to the Crown of all fines and •.rfeifures in x\ew Hampshire, and of one- filth of the rents and revenues for the support of gov- ernment. In 1781, a conuni.^^sion pa,ssed the Great Seal, appoint- ing Edward C.anfield. Es({., Lieutenant-Governor of New Hjunpshire, in which Robert Ma.son, styled the.ein pro- prietor, and eight others are appointedCouncillors; and there is a clause i.^^erted in if, recognizing Mr. Mason's title, in the .same words as that in.serted in the former conm)i,ssion. It does not appear, that the authority or influence, which it might be supposed would be derived to Mr. Ma-' Noii. from this commi.s.sion, had any effect to rein.stnte him in im.ssession <.f his jn-opcrfy. the inhaLitants still continuing t.. contest his title, th.n.gh .several judgments were g:ven in his Ihvor in the (jourts there, one of which was, upon an ai)peal, confirmed by His Majesty i„ Council. I" "r about the year IfiSo. Mr. Mason returned to KuLdaiid, when, bo die!, leaving the Provincr of NVw ll.unpslun- to bis two sons, John and Robert xMu.;on THB KIN«'« PHEROGATIVE ABHQ^p. Q'7 . who in ](i90, «„lu it t„ Samuel Allen, of London, fov two tlu„«,nd ,even lum.lmj ,,ou„d,, havinR f,r„t sued out a hue and recovery, in We»tn,in,ter Hall, in order to bar the eatoil. Tl.e fmt mention n,flde of Mr. Allen', title after thk pur.W, . the Cl.r,..r .ranted ,,, Kin, William to the Ma,.a..h,„e(t» Bay, in hm. -here hi, riRht i, re - h,n„ heren, ,.„ntai,.ed ,l„dl excen.l or he understood, Zt^'T "Tl": "''°'"''""-' ""•^- "«'"■ "*■ ">'«■ Uiant elanun,g Iron, and under John Jt,,„„_ j.;,,, de- o«„ed, or any other |,or,„„ or person., hatl or have o clanneth to hold and oujoy, of, i,, to or „„t of uly part or part, of the prenn,e, situate within the lintita ahov„.n,en„oned, hut that the ™id .Sanuu.) Allen, aud hi ?,*"■■ ,™ ' ''"■" ""' ''"'""•"> """ '"'J "hall bave, hold and eu.,oy the .au,e. in .,uel, n.aui.er, and no «*^1-. than a, tf tho.e pre.,e.„t, had not been had " 1" Ki'Jl Mr. Allen w.us a|,|»>i„ted Lieutenant-Gov- «"o.-o, „.,, Prnviuee, who hna.^h, n.auy ae.ion, iX -.w.on ,„ the land, he ,daiu,e,l ; hu, a verdi,.t w„. .i^e , "Kau„rhnuhy,he,jury in everv action In l,;i.7 l.,.rd liell„u,on. wa, appointed (lovernor of t-o^eruor ol .New ll„n,p,hire. w„, .,u|,er„.|ea nl7U2.,;,,l,a,el Allen l,r,a,Kh, an appeal 0,,,^ Ma- J M> n ( ouu, ,1, ,r,„u a verdic and .ju.lKu.eut .iv™, ;*•""","'" ' ""'"■""■ ''•""■' '■'••'"■lio.tnv i, C «.U H. lion who, at that tiua, „„..e,.,ed ,he large., i.ll !l!-l 4 ■^^ 98 OPINIONS OF EMirve,xVT LAWYERS. quantity of land in New Hampshire, which said judg- ment was, upon a hearing of ail parties, affirmed ; but, in regard, the judgment was not final in its nature. The order directed, that the defendants should be left at lib- erty to bring a new action in ejectment, in the Courts in New Hampshire, in order to try hi.s title to the pro- priety of the lands in question, or certain quit-rents, payable out of the same ; and thot in case, upon such trial, any doul t in law should arise, the jury be directed to find the matter s{>eci:illy, that is, what title the ap- pellant and defendant do sev. .ally make out to the said lands in question, and that the points in law should be reserved to the Court before which the same sliould be trietl, or if, upon such trial, any doul)t should ari;te con- cerning the evidence gi\-en at such trial, such doubts should l)e speciall\ stated and taken in writing, to the end, that, in case either party shoidd think to appeal^to Her Miijesty in Council from the judgment of the Court therein. Her Majesty might l)e more lully informed, in order to a final determination of the said ca.- "•'"-' »'•■" "- i'.H« ' 1 ha *-ld be ,.,ve. in the ,.„urt.s in the said ftovinee. a,e ,t ,nght be reasonable, as he conceived, to diree Of M . Allen „,s,sto,l on it.) „n the trials, that might be had or .settling hi, right to ,h„ said Province, that •he M,atter» ot li,ct relating; to his, and the title of oth- ers clamnng the .san,e hnuls. n.ight be spciallv ibund t^Ktls thal^ the n,atters of «„.t might appear before Her ttt";; 11 r''"" "'"""'' '" """'' '■'■""' 'l-J"'l«»ents that should he given ui the said Province " In con.,e,,„ence of this opinion of the Attornev-Gen- eral, Colonel Dudle.v, then Governor of New England r Air""', -„v""" '■""" '"" *'-•■ "-' "■ ™- Mr. Allen should be opposed by the inhabitants, and hnnlered Iron, entering quieth into possession of the waste lands, or should be disturbed in ,l„. po.sse.ssi^ hereof whereupon any trial or trials s, Id be bro..gl belore Fler Majesty's Courts ther.. li.r s,,,|i„, „„, tut X"-""",':""'^- 1 -bat on such ,r ,n,.,ls ,be s, ^ Allen , ,d n,s,s, ,h„, ,1,,. n,„„ers of li,c, should be s caly lonnd by tbe.iuries. that he .should do ail which -jratel 100 OPINIONS OF EMINENT LAWeRS. 'I Si, On the 20th of l^ebruary, 1703-4 Colonel Dudley ac- quainted the Assembly of New Hampshire with the or- ders he had received relative to Mr. Allen ',s title ; upon which tin Assembly addressed him to represent to Her Majesty, that they were sensible of her rej^ard to justice in the late ^rial between Mr. Allen and Mr. Waldron, which had forever oblijred them to a ser-e of, and reso- lution in, their dut\ and obedience to Her Majesty ; that they only claimed the property of such land as was con- tained within the I)ounds of their towns, which was less than one-third part of the Province, and had been possessed by them and their ancestors for more than sixty years, and that they had no objection to the other two-thirds being adjudged to Mr. Allen. On the 3d of May ITOo, the inhabitants and terre tenants f<<" the Province, at a general meeting held at Port,sraouth, came to the following resolutions with re- spect to Mr. Aliens title. " That they had not, on behauof themwlves. nor any the inhabitants of this Province, (whom they represent- ed.) any challenge or claim to any part of this Pnivirce extra the bounds of the lour town,'* of Prntenimith, Hampton, Dover and Exeter, with the hamlets of New-- castle and Kingston, kc, appertaining, which were ftll comprehended by a line on the western part of Dover, Exeter and Kingstown, alivady known anil laid out, ami should be lorthwith revised ; but the .sni.j Sanmel Al- len, Es(i., his heirs and a.ssigns. might peaceably hold and enjoy the said great waste, containing forty milen in length, and twenty miles in breadth, or thereiUxHite, at the heads of the t^nvns aforesaid, if so should pleasj Her Majesty: and that the inhabitants of this Province, at all times, shrs, executors &c., forever quit-claim unto the present diab,.tMhe.r heirs and a.sign., forever, of all that txact of land, and every part and parcel tliereuf. with all privileges &c. situate, lying and being within the seve- ral towns „i this Province, to the extents of the bounds thereof; and al.so warrant and defend the sane to the ■"habitant, against all manner of persons whatever free from n.ortgage, entailment and all other manner uf in- cmnbranoes, and that this agreement, and (he lands Hiereui conta.ned. .should be accepfe.l and confirmed bv Her Majesty; then, and in such case, thev aereed t. .i- lot and lay out mito Saimiel Allen, his heiVs and assign. forever, hvo hundred acres of land out of the townships of Portsmouth and Newcustle, 1500 acres out <,f the t«..ish,p Of I)...e, 1500 acres out of the townships of Hampton and Jvmgstown. and 1500 acres out o the toM-nsh,pot Exeter; all which Unds should be laid o to urn. the said Samuel Allen, out of the ..,,.....:; of the ivspect.ve towns, ui such place or places (not .'v- -dmgth,.eeplacesinatown)as..houl heuit ..- ven.pttorMr.A.len,andleastdetr.menfaltot. : lialjitauts of the town. "Aud further, ti,.y a,^,,i to pay to Samuel A .en his heirs or a.ssi^,s, two thousand pounds ..........e money of New K„gland and valid by these articles ; but, if any, the purchasers, lessees or tenants, should relu.e' to pay their just part of what monev should be o-reed to be paid, referring to this aflair in equal proportion with the rest of the inhaoitants, acconling U^ the land they hold, then their ,^hare should be abated by Mr. Allen out of the two thousand pounds payable to him by this agreement. "And further, that upon Mr. Allen's acceptance and underwntmg of these articles, thev pronn-.^ed t« give gO(xl personal security ibr the payments nbovesaid. 'And further, that all actions and suits in the law depending, or thereafter to be brought, concerning the premises, should cea.se and determine, and be void, un^d Hvr Majesty,-, . ^asure should be further known therein." The.se propositions having been finallv .settled and agreed t<). were orderc.l to be i)resented to' Mr Allen for his acceptance : but his deafh^ which happened on the next day, prevented it. Upon the death of Colonel Allen, his son. Thcmias Allen. petiti(med the Crown ihat an appeal brought l,y his father to the Governor and Council agniiist a judg- ment given in the inlerior Courts in favor of Waldron THK king's PRKROGATIVE ABROAD. 103 might be revived ; which petition having been referred to the Attorney-General lor his opinion, wliether it might be proper for Her Majesty to grant the prayer hereof; tlio Attorney-Genoral, on the 23d of March, J/05 reported hin opinion, that, by the phiintiff's death, the writ of error was abated, and could not be revived. Upon Mr. Allen's suing for writs of ejectme i in his own nanu^ lie was cast with costs, whereupon he ap- pealed to Her Majesty in (buncil ; but died before the appeal was doterniined, having first, by deed of sale dated the 28th of August, 1700, conveyed one-half of land *'' ^''^ ^'^'"''''' ^''^'^^' ""^ ^'^''' ^" ^"""^ ^"«- Upon the death of Mr. Allen, the half of New Hamp- shire which remained unsold, devolved to two infant «ons, but It do ot appear that any application was ever m.de sace th. time by them, or any one in their behalt, or by any claiming under them, to be put in pos- session ; and in the year 1716, Colcnl ^hute was ap- pointed Governor of New England, v ith a power, in his commission, of granting lands in New Jiuuip.hire- in consequence whereof, several townships were laid out nor does it appear that any claim of property was set up until the year 1746, when John Tufton, who had taken upon him the name of John Mason, and who is one of he surviving grand-sons of Robert Mason, pretending « the hue and recovery, sued out in Westminster ll.>. i.y John and Kobert Mason, in 1691. previous to the conveyance by them to Samuel Allen, was illegal as It ought to have l.en done in the Courts there h?m selt sued out a common rec<,vc.y in the Courts of New Hampshire, ,„ consequence whereof the sheriff put him i;^ n !l t t 'At HI 104 OPINIONS OK EMINENT LAWVEHS. it in possession, aud he sells his ri;2;ht by daeds U, sundry persons in the Province, who have taken upon tliem to Sii-ant hinds, and lay out townships. t\nir the unilbnn .silence and discou- tiiu.ancc of all «ort of claim to the waste and unim- picvcd lands, within the Province of .New Hampshire, l"'»f more than forty years successively, during the greater part of which time the Crown has occasionally n^.ade sevend grants of th.- unimproved lands of the said Province, without exception or complaint from any per- son or liimily, does not prescriptively vest the waste hm.ls of the Province in the Crown .' And how liir '-.in ativ private claim to the.se lands, so long deserted, !'«• iiMU iv\ ive.i against such an exercise of power over tlicm ill the Crown ? If these waste lands are not in the Crown, to whom do they belong > And what will be the regular and I- -t method of bringing this matter to a final legal di'termination I 1 1 is impossible t<. g e an answer to this yw.«v> witU- «'iil knowing many circmst^.nces not uj p.-aring upon the .-late of this case. /•V,.v/. It is n«.ked to whom the.^> lands belong I They w.re oiigiually granted to Mas,>n ; thev Were after Wurd»< <-.nve^^d to Allen. Whether that cenvevance k' g.Kn] depends upon the will of John Mason, not particularly •stnled: up:m the fine an.l ivcoverv said to have iH-ejj levied and sulVered, not particularly stated ; u|)V. MuHSAr. (10.) J/r. We.(\,ojn,uo,, how far ti^ Khu, has a Ca.se. By the treaty „f Utre.ht, th.> Ki„, of France gav. up tlK. Fn.„<.h p„., .r N.wfo..,.,,„„3 to Gr^ Bnta.n, Ua the Fren.-l. ...huhitants u.n- ull<,...d to re! »!';■" ^ -'•^' '■'"•! -.J..y tJu.ir .states and .ettle.nent. pro, -de.l they ^.nUWie.l tl,..n.elves to he .ui.ect. ..f oi^ Bnt.u« and tho.e who wouM not do it. had C Icl '""'■ "" ^^'^' ^'^'^ ^"-> ^''^ -eable 16 I 106 OPINIONS OF EMINENT LAWYERS. iJut ..y Her Into Majt'sty > k'ttor. in considenitlon of the Kiiifi; of France's rcleusiiif; a number of Protestant slavcH out of his gallies, she did habitants at Phicent i)orn:it the French i n- ia, in Newtbuiuiland, uho were not willing to become lii'r sul)jecis, to sell and dispose ol' tlieir hou ses and lands there Quart. — Wiiether tiie Queen, bv 1 couhl dispose of lands ;rninled to the (. ii-r said letter, treaty lovvn bv : \ I am of opinion that the Queen i luld \\u\, bv her let- ter, dispose of lands ^'ranted to the ( but if sheemered into auv reiiul rnwn bs treaty Crown of France for that of nations, enj^ajicd to d ir a< hy Mr. P()|)|)l,.. tv{ <'ri-iii;i; to ns th nnnrx-od petitions „r Sir Mihvo Lake" Ba ITS. nud r.l'SjMmicI W-M <'•«.!<. K: '•|., and odion opinion upon the sni >. nicrchant, •11(1 (iirocti MO t .4D. 107 i(> wvora! rnnct, and oth- on I)ohalfof Elisha nj? us to ro]>oTt our fiiderod t\ o \ that the K' ■'^iiid s(ato of ■•^■■lid state oj' our Lordships; avc h ;i case anil petition wo con- "*: and find Pachiisetts Charter, it •••'lonies coinnionlv. •ailed and I ('oh)nv oC Ma.\vn J.v the name of the PI ynioiith. the P '"•-'■t--^ Hay. and tli,. Co] on^• fovinee Aoadi Ar. .r N ine a or th<' t e\v l>(>t ova Scot •''•ritorv eaUed P "cen the .said terrif '"■ •">'' 'II fl,;,t tra.'tof land 1 orie •ovinee of Main,., I >r \. VI 'va Scotia and tl into one real P "' »'m-ted. united nm] o s :iid the Afas.saclni.selts H I'ovince. I)\- th in in X ineorpor ted ^'" *f"it their Majesties ,|o, tl ;ianie of the P <'^v Kn-land. 'i<>vin< e of mliahitants of tin ■ai( Massachusetts l\ I I "'ivhy, in-nnt uiit the Now Kiiyland. in .\ in the said Charter i.v. and their su( n-vinc,. or Territ orx- <'t>s.sors, all tl.at >r the I)art of tl »' lan.js and ""••"■••'■ lyin- within the iMMuid • '•""'•"la.ly mentioned ; and al count Scot '•'n'ditauient-< I iries so. ry or territory c,»i .vini; and hei„, nnio a; and all those lands and 1 "ly called A or anri (.tli<-r lierrdit,- ineiit •^ a within th iu\ 'avens, po,ts, riven d I prennses what cverv part an.l pare! thenul •->'■' -^inL' within ten lea;r,„. land, within tl """"'•"•*•■- and limit ;,( Waters, •'"'■V'-r, l\i„. '"I'esaid, """' "I-", all i.|,,„ds and and i«' Mid Ixinrid •llleclh o H. and all 'I'I'">^i'e tlie main nunc . if' •, •. ^K. f ^^^^1 ^^^ t H 1 1 1 f 1 '1 '^^1 :.M Httiil 1 f 1 108 OPINIONS OP EMINENT LAWYER!?, rals, as well royal mines of gold and silver as other ^mes and minerals, whatsoever, in the said lands and premises, or any part thereof, to have and to hold the same with their and every of their appurtenances to the said inhabitants of Massachusetts Bny, and their succes- sors, t<. their only proner use and hehoof, forevernio/e be holden of their Majesties, as of their manor of East Greenwich, &c, yielding therefore, yearly, one-fifth part of all gold and silver ore, &c. That in the clause in the said Charter, directing the choice of ihe councillors or assistants of the said Pro- vince, who are to be twenty-eight in number, it is or- dered that eighteen of them, at least, shall be inhabit- ants or proprietors of lands within the territory formerly called the Colony of the Ma^^sachusetts Bay, and four, at least, of the inhabitants or proprietors of lands within the territory formerly «;alled New Plymouth, and three at the lea.st, of the inhabitants or pn.j.rietors of land withm the territory formerly called the Provim^e of Mame, and nne, at the le -st, of the inhabitants or propri- etors of land within the terriU>ry lying between the nvei of Siigiwlahw;k and Nova Scotia. That there is iK)wer given t.) the Governor and Coua- c.l to impose tuxes, &c, upon the estHti>« and persons of the inhabitants or proprietors of the said Pn>viiK,'e. That in the said Charter is the following proviso: pro- vided that It shall and may Ix' lawful for the sai.l Gov- ernor ...d General Assembly, to make or p,u,s any grant of lands lying within the Unrnda of the eolnn.es lorm- erly called the col.mies of the Massac husett.s B^y and New Plymouth, and Pi.unee of Maine, in such manner m heretofore they might have done, bwutueof an/ former Char'^ or IcttexB pat^int, which graute mC li^jOd TH£ XING's PRSROGATIVE ABROAD. 109 Within the houndH aforesaid, we do hereby will and or- dain to bo, and c. jtinue forever, in full force and effect without our further approbation and consent ; and so as, ueverthele.ss, and it is our rt>yal will and pleasure that no ^.rant or grants of any lands lying or extending from the rn er of Sagadahock to the Gulf of St Law rence and Canada Rivers, and to the main sea north- ward and eastward, to be made or passed by the Gov- ernor and General Assembly of our said Provin ,> be of any force, validity or effect, until we, our heirs and sue- ce.,s„rs, shall have .signified our or their approbation of the same. That within the tract of land lying between St Croix and Saga.lahc^k, is a place called Pemaquid, where there ^VHs a fort built by Ja„»es, then Duke of York to whom that tract Mas granted by King Charles the .VH-ond, in 1<;(;4. in onl.r to pr^wrve it from the In- U-ing in a naKed and ,ie(.„,-eless condition, it was. i„ um. t,vkon bv the ' ." i.!ol..hed the sa,d tort at JVmaqui.l. and ^ 1 nch Kmg put tl.tt part of U,e ccMiutry under tiie - : ' ( III im. no OPINIONS OF EMINENT LAWYERS. governnient of his Governor of Nova Scotia where his next garrison then was, and it re.naine.l in possession of the l^rench. aft^r the ])eace of Reswick. That the French, as « testimony of their ri-ht to and possession of, the said tract, huilt a church at the river Kennel)eck or Sji^ratiai,,^.]^ That Joseph Dndley Esq., (then Governor of the Ma.ssachnsetts,) several times, hy ..rders from Her then Majesty, pressed the Honse of Representatives to re- bn.ld the fort and restore the fortifications at Pema- quid; npon which the H..nse of Representatives in the.r address to the Queen, expre.ssed themselves as lollows : "As to the building a fort at Pema.piid. the expenses already made (m onr fortresses, garri.sons. marcn.s and guards hy sea, amounting to more than eij^htv thousand pounds. H ^.reat part whereof is in .rrcar and unpai.l he- ^>K^es the daily growing charge for our neces.sarv de- fence, an"anl^ of one hundred mil.-s .listant from any part of this Provi,,.-.. .t pre.M.M,t ii,hal,it<>d l.v the Knglish, an.l of |;,t!. ,„■ „„ advant...... .,. this Province • although the expense in budding and .M-ppo.tn-r the late' '••••fat Pema.p.id, .-ost not less thantwen.v fho.Hand pounds, which was not l,>st hv anv nede,.t of the gov- ernment, ,t being fully supplied for the defence and sup- THE KINGS PREKOGATIVE ABROAD. . m port thereof; but by the cowardice or treachery of the ^en.o,,,nand.„g officer upon the pbce, .ho 'received ins trial, but Avas acquitted." .on „ ,1,, French to the je„r 1710. when i, „« re- "keu hy G.ne„u Nioh.,l,„„ with ,„,„e ,r«,p. .,,„ n.^ hv'H;l'i!;"'r' ■^''""■' «'"'--"-"f ^^^ Ma„.<.h„«.tt», 1.V H- l«te Ma,e..t.V, „„ler,, ,ec„„„„e„d«l t„ the House the bu,l,l„,g ,,„„„ fort „,„ ,^,„ ,^, -^ ^or greater ...„n,, ,o tl,..ir ,K,„.ie,,, up.,,, „,,.„„ 'the lid " That, „p„„ a further c<,„»i,lerati„„ „1 Hi» Excellon- ,™ ih 1 " "'" '""■'•'■ '"■ •■"' ■'■ "'"'• ">""■*■- ir.g the li.w eircum«tiii,ce» i,f this Pr„ .„ i ., 'r:'^/'"- "- --i .,th,::m;\Ct'f:t ct, here are „,>t al.le ,„ e,„„e i„l„ ,„ g„,, , ., „_ '^ the refc,„l,,,„g „,, ,;„, at Pe.ua,,,!,, Zu ,., a,„ , , great .en„„v „, the lives au.l estate uf ili, Maj.'t" , " "' ''-^ '■'•■'•-•" 'l''«t l'e..u.|uid i, a, », great a '""""■","■ ,'""■ '•-'«li-hse„le,„eu.s; hut that .,U >"-. what shall 1. ,„„,.,„„,., ,„, „„. , ; '» .erv„tH,„ „r the g„ve e„t. e, „ e, „s ' 1 . [ l-yal »u„jeets. shall readil, eheerlull. cutuphVi 1 1 ;i 112 OPINIONS OF EMINENT LAWVEH8. ' i That this tract of land, whi^h is re{ iited part of Nova Scotia, did thus lie waste and uninhabited, though capa- ble of very great improvements, and by the .situation thereof, the lands in those parts, with respect to their produce, harbors and fisheries, are of more value than any others in that part of America, and Avould produce considerable quit -"rte, if the right thereto is in the Crown, so that the title to the government, as well as to the property in the soil, is of very great consequence ; and therefore, upon a representation tt) His Majesty in Council, some Protestants from Ireland and from the Palatinate, were desirous to settle upon the said tract of land, lying between the rivers St. Croix and Kenne- beck (Sagadahock), extending about one hundred and eighty miles in length on the sea-coast, Hi« Majesty di- rected that his surveyor of the lands of Nova Scotia should assign them lands, according to their desire, which he accordingly did nYnnit a year ago, and sieveral families are now settled thereon, and improving the same, which were afterwards to be ratified to them. That the inhabitants of MaHsachu?«^tts Bay, who, till this time, always neglected the said tract of land, as very inconsiderable, and not worth their notice, claim not only a right to the government, but also, to the lands in the said trsict, and the govornnvent there threatens to drive the families (now settled there,) immediately out of the same. That the inhabitHnt*^ of the Mas.saiihuseJts do not now pretend any right to that part called Nova J^cotia, which is likewise included in their Charter, and the .siid tract of land is reputed piu-t of Nova Scotia, though it is differ- ently descrilxnl in the Charter. Upon this state vi the ea«e, thft questions pro|)osed to # 113 THE king's prerogative ABROAD "-tor .,e.L .™et:;irn;;"£ir;T"- prove «,„ .„„,,, ,„,,^j tht i h1 r.r ™" men. a,„> „,,„e ,.„„. t^e, had ull; f LJ tt^n™- now have to *he lands l ^"arter, and and wheLr M '"'"""« "'«-■<"". becnn.e vacated ; landJw^^ .rrrrr "' "'" '™^" -" ""> «^ui, arc not absolute v revesterl in ih r- ■^-a,r;r:;-r:':;^;:3r*'<-- JlWK.id petitidii of Sir liil,v» l.,i i' . ror.h, tl,«t ,l,e ..aid Can. „ T t' ,"" ""'"'^' ^'' "- late «.-and-,;.t,.e,: I' ;;'™' ■"^I,"'^' '-■"«"'- joined ,n ,naki,„ ,eve,.a, ^Z^^'^iT T'' northern,,,,,,, ,,„.( „,■ ,■„, V ''■ '^"■'"'"'K l™n the «'- »aid river K,,,,^. ' l"""' ' "" """' "'''™ "'' -o,,!, .,„ „a„h .ide I^ he' •",'■'""-' " ''" """ "'« -ex.e,,di,,..,,;u::,';:;.;;:::-:"V'''^ -"'■"'' tl'e na„,e „!■ a ,s„,„„e „l I ' "■• «»"«i ''v ■: ---o„.h ::•:::'::.;--,:■--- creeks, (,ones,wo<,,is,„„|,.,u.ww I -i" ponds, '.«».nda„„^„ai,„.:r:^;'-— ,_^v. f- J 114 OPINIONS OF EMINENT LAWVEHS. * both sides the said river Kennebeck, namely, from the lower end of a certain place called Neaguaiukot, which IS a little behnv some islands in the said river Kenne- beck, and so going up the river lour miles alwve the falls of Tokonock. and reaching ten miles into the woods on both sides of the said river Kennebeck, with all woods, underwoods, mines, minerals and privileges thereunto belonging ; and also, free passage foi vesselr -p and down the said river Kennebeck. and nV "iat tract of land lying near or about Waksrong. with all rights and privileges thc'reunto belonging ; and al' that tract of land lying near or about Agnascorongau, adjoining to Kennebeck River on the north-west, and so south-west to the southermnost island of NeguomkaA". and six miles from Toconock falls north-eastward, and for fifteen miles all along from the said river Ke. lebei-k into the main land south-eastward, together witl all rights and privi- leges, as well y water as ],y lan.l. thereto behmging ; and al thac island, lyiug on the east side of the said river Kennebeck. called Arrowsick or Eichards Island, and all ho;..-ies, woods, imderwoods. jxmds, waters swamps, mines and profits thereunto belonging, and all that place or seat ol' ground, called Negwassev, lying between the Ixiunds of Sagadahock River on the west- ern side, and Sheepscott River on the eastern side, one great ]):„gland aforesaid (ac- cording to the laws of the said Province.) then in the petitioners custody, and ready to be produced, might appear. ' e *" That the said Thomas Lake an.l Thomas C'.rk bein^ equ^dly interested in and entitled as tenants in common to the said huul and premises, did, in or about the year 16o(), aiid from and after that time, erect and build ^everr -ouses and out-houses, and several saw-mills on the saio Arrowsick Island, Negwassey. and other places on the ina.n land between the said Kennebeck Biv^r and the river Penobscott, and cleared and made r • r "r T- 1"'^"'' '-^ ---raged many famu.. to come and inhab.t the same, and had several large arms, whereon were very great stocks of cattle, a- bunt and made several grist-mills, bake-houses smiths' KuM tl c u with ,he p.'od.u-e of ,h, said premises, for «os on a.ci other parts, wherein tlu. said Thomas Lake amrhomasClark expended between -.ni,..,enu.:n oi twenty thousand pounds ,,,,,1 „,„,„,,., That la the years 1G73, 1074 and 1075. the General 'iii :i f i;t 116 OPINIONS OF EMINENT LAWYERS. H 3 fc Court, a^emblcd at Bo.ston, for ^ro^ eminent of the Pro- vince of the Massacliu^ett. liay, in New England, did order that tlie said ea.^tern part.s within tlieir jurisdic- tion, whereof the afore-^aid lands and premi.ses are part, should be callo.l Devonshire, and bv reason of the great distance of those j^arts Irom Boston, afore.said, did em- power the Governor of the said Province, with four more of the assistants of the said General Court, to ap- point proper and fit persons to be Commissioners to hold a County Court and Courts, for ending of small causes ; and that such Commissioners should have macr- istraticpl power to punish criminal offences, to marry and to .'^ettlo tlie militia at Pemafpiid, Cape Nawaggon, Kennebeck, Negwassey, Sagadahock, Damarillis Cove! Monhegin, and other places within the si. id county of Devon, and to administer oaths to constables and other officers, and to exerci.se all neces.wy jurisdiction, both military and civil, for the better government and pro- tection of the said county of Devon, within the line of their patent ; ar | that ^\e ..aid Thomas Lake and Thomas Clark were appointed Commissioners, with oth- ers, fo" the purposes aforesaid, as by authentic copies of the orders of the sai.l General Court, then in the petitioners custod-, ready to be prixluced, migjit appear. That in the latter end of the year K)?.',, or in the be- ginning of the year KiVC a war bi-oke out with the In^ dians, who invaded the said cority of Devon, and killed the .said Thomas Lake, in defence of the .sai.l .^t^ttle^ ments; and afterwards burnt, ruined or destroyed all, or the greatest part of the .s.id .settlements, and killed or drov. away their tenants and cattle therefrom. That the said Major Thomas Clark, escaping the In- diiuiM, .survived the said war, and afterward.s returned to TH. IlNG's PmRHOOATIVI illlOiD. Hy -aid land,, and witl, the oo^urrence and »«i.,„„cc of .l.c. w,d,„v „, ,he ™w Thoma, Lake, the petitioner's la.e resettle the prem,«,, and to repair and rebuild the seve- ral .ett eraenb ruined or de,troved bv the Indian, a« .-.lorosud, and pr«,eeded therein until .uch time a. a .e,v war broke out with the Indian., who .again .nvaded bu nt, r„„,ed, or de,tro,v.d all ™,,1,, their new work, and .ee„„„,,, a killed .- drove away their tenan. . ,d t^l " li'f '"'™''''' ""<"• *''>'■'='■ "° f-^t''«'- »t- "P^ uld l« made to re^ttlc the «vme, bv re«,n of h. .„.. :..ut ,ne„r,ion» of U,e Indians, and of the con- fnued war. or ho,tililie.,, between them an,l the E„gli,h m thn«e p.art», until the peace wa« concluded at Utrecht- "l"" wluch h„,,tili,i„, ee„..inK, the petitioner, in con unc .„,, w„ ,he,.aid Jo,i„bWalcot. and. Lionel Hutoh- .»., dKl alter the «id peace of U,„.cht. in the vcar 1 14, .-en.l over Iron, hen, e Mr. John Watt.,, a ver, ca,-c. and understanding ,.r.on, to Arrow,ick I,l„„d nd •■ "'i «« pHitioner did advance to "P«a, J , toward. In., p„,,„,H„„ „f „,,. ^.^ pende,,,,,. hn„, ,hc «,id Mr. Wa,„, in n.aki^.g^ch L tended .Clement,. exclu.,ivc of what the J, vlZl H"t<-lo„,on a ,d Mr. Walcot did advance tbr that P«-; and the ., aid Mr. VVa,,., wa, verv inJu,, u „ ,. «.vera , Clement, and buildings, and „,akig .;,;: """-■""»-», ana o,herimp„,vcn,e„t,. for cn„^ >e,u .ncc and defence again,, i„,„|„ ,.^,„ „,^ i„,,;„, u.d l:ad settle.! tl.e« ^^ „f i,r^,.Zt i I lit ) »i 11 118 OPINIONS OP EMINENT LAWYERS. died before he had completed all the intended settle- ments ; upon who.se death Mr. Penhallow. marrying his widow, li\<(l there, and looked after and took care of the said settlements, in the Itcst manner he could, till a new war broke out with the Indians, in or about the year 1722 or 1723, when the Indians asrain invaded those partH, and came down in a great body, and burnt, mined, or destroyed all su.h mills, and .settlements, as the said Mr. Watts had made, except a fortified house, which the said Mr. Watts had caused to be built «m the Island of Arrt)wslck, for protection against them, which, tt)gether with .some other liouses which were under the defence thereof the said Indians several times attacked, and atteni|)ted also to burn or desfioybut were repulsed and Ibrced tu retire fnmi the same, and wiiich hou.ses •u-e now standing ; but tiie Indians killed or drove away their cattle from thence, and also the tenants and cattle, from their other .M-Uiements That since this lasi war cndctl, the petitioner, with the i^aid Colonel Jiutchinson and .Mr, \\alcot. were endeav- oring to repair and resettle the piciui.ses. and to encour- age several fanulies to go and settle tlier«(>n; but were preventc-d by Colonel Dunbar, Surveyor-Cieneral of His Majests^ w(kk1s, in America, who pretended ,«ome in- struction>. (»r a connni.ssion from His Majestv. to make st'ttlemints wiiliin the limits of their LiihU. ami in other places in th«' ea>leiii p.iils, in the l*ro\ inee -f Milshu- eiiusetts, and to ereit llie -,nne into a separate govem- iiieiil, r oin tlat rroviiiee, although the .iiii'- is include*! in the Charter granted lo t he subjeels ul ilie -,iid Pro- vince: and notwithstanding the .-aid Colonel hiinbnr hath, since hisunival there, iiei-n waited upon nn i made fully aci|uainted, by the said Colonel IluUdiiu>un, with THE king's prerogative ABROAD. Hg the matters aforesaid, and with his, Mr. Walcot's and the petitioner's title to tleir said lan.ls and promises yet he insists, that he shall be obliged to enter upon and make settlements therein, unless His Majesty shall be graciously pleased to forbid or restrain him from so doing. That Du2i!>ar s pretensions have not only discouraged all persons ihnn going to settle the premises, but have ternhed such tenants as the petitioner and the said Colonel Hutchinson and A:,-. Walct have there, from enlargnig or improving their settlements ; all which the petitioner apprehended to be his duty humbly to repre- sent to His Majesty. That the petitio,>er. tl»e said Colonel Hutchins. n and Mr. ^\alcot, being entitled to the said premises, by pur- chase from the Indian Sagamores or Sachems, allowed of and approved by the General Vuurt, li.r the govern- ment of the Massachusetts Province, and confirmed by the several Charters granted to the subjects of the s„id Provm. e. an.l they an.l their ancestors having end-av- ored, all thaf in them lay, to settle the premises at su<-h Rroat pnms and expense, and having, from time to time sustained such gn.,»t los.scs th..,..i„, as aforesaid, and Ih>- of great «;iv»ntage to the tra,le of this king.lom ; the rK'titioner I HTeloic, M, behalf .,f b.mseir. ,Mid of the .said ('olonei I M.cbuison and Mr Walcot, mo.t In.mblv praved His M".|.-sty to seM.1 tl... necessary ordcM or instructions to th.'Ha,dC..loncl|),„,bar.not to intermeddle or molest t be pHitione, an.l the said ( 'olon..! Mut.hinson and Mr ^^..l.•..t. intbes.ud premises, to which tbev are entitled .w aforesaid ; and tl.at the said Colonel Dunbar do not - 1. . ! lao optMOKs or KMiNsar lawykrs. I ■< w* li obstruct or disturb thein, their tenants and agents, in carrying on their settlementa, on any pretense whatso- evfr, and that the petitioner and the said Colonel Hutchinson and Mr. Walcot, imy »,e quieted in the pos- session there»)f, under the government of His Majesty's Province of the Massachusetts, and may be at lib- erty to proceed in settling ihe premises, without uio- letitaticMi. The said petition of Samiiel Waldo, on behalf of Eli- sha Cook, Esq., and others, sets forth, that the Council established at Ply»K>uth, ibr the planting, ruling, order- ing and governing New EngL'nd, in America, by deed- poll, under their connnon seal, and signed by Uol)ert, then Earl of Warwick, did grant, bargain, sell, ejileoff, allot, a.s.-,ign and ctmlirm unto Johji Beauchamp and Ta»> na.s Leveret, their lieirs, associates, and assigns, all and singular, th(»He binds, tenements, and hereditameiitri whatsoever, with the ap^iur tenant's there.. f, in New England, aJbresaid, which »i-e ^ituate, lying and being within or lietweeu a place there, c<>nm»only lalled or known by the jMuue o<' Muncongus, Umaids the south or Konth-west. m.d a »tmiglit line exteiuiing from tlkence direcUy ten le^igut's upinU) the main land and continent, t4>wards the great sea, commonly called the South Sea, and the utmost limit* of the >.pa.e to U^i h-agues on th« norlli-north-eastofariverinN.w England, arwivs uttoiUM^t northern hunts of the ^nid ten Juu^uet* on the north hide of thy THE king's; PREROGATIVE ABROAD. 121 8aid river of Penobsoott towards the we«t. and all Iand« grounds, woo,]s, soils, rivers, waters, fishings, heredita- ments, profits, oonnno,lities, privileges, franchises, and emoluments, whatsoever, situate. Ivingand being, arising happen.ng or renewing within the limits and bounds aforesaul, or any of then,, together w.h all Island, that l-.e and be within the space of three n.ilesof the said lands and premi.ses. ,>r any of thc-m. to have an premises. That, under this,. rant, the said John Meaudunnp and Thomas I .vere. eufcre,! on. .„.l „,.re actuallv possessed .n the.r den.esne. as of fee of au.l in. th,. s.id tract of '■•'"•^'"•'•^'•'y -"'veye,! to then., an.l tnade verv consid. orabiesettlementsandimproven.ents (h.reou ; but on the >n..k,ngout ofthegreaf war with t!,.. Indians i„ lti75 thcrsawlsHthMncn... »...c,hcr with all that part of the' -.ntry, were d.Mroved, and winch w,,,- hel.l till the Wo the feat, o, Ttrecht sav„„ , „„„ ,,,,^ "T r •'■■^^ ♦'""♦•••"•■ —Mtenu,:. .therein, out as the same were verv sli.,i» .,,.1 *' i.\ shoit and precarious there was no po.«sd.ilitv ofMtfo,, ,!.♦;,„. .,„- M> , K,ch intervals " "' ' '"- "^ -'"-— ts dunn« That the Haul Thon.as I ..eret survived t! nd t ' 4 lit It 122 OPINIONS OF EMINENT LAWYERS. •1 if ■ John Beauchamp, by virtue Avhereof he became solely entitled to the l)ene(it of the said ^^rant ; and on his de- cease, all the said lands and premises became vested in the said John Leveret, scjn of the said Thomas Leveret, the survivin«r grantee, to whom the petitioner, Mary Rogers, is heir at law. That Sir William Phi])ps, then Governor of New Eng- land, not knowing, as it is presiuned, of the said Ji.hu Leverets right to the said land, treated and agreed with Miidakowando, who was .Sagamore, or Chief Sachem, r King, of the Penobscott Indians, lor the }Miicliase thereof, and accordingly the .said ALidakowando, tor a valuable consideration, by his dccd-]).)ll, dated the SUh of May, IGOl, granted. relea.sed, confirmed, enfeoffed, bargained and sold the .said lands and jtreinises.to tin' .slid Sir Wil- liam Phipps in fee, which deed was afterwards, viz: the 10th of May, It;;t4, per.-^onally acknowledged by the .said Madakowando. belbre two of the members of his then Majesty's (Council of Ma.s.siirbusel ts J'rovince, and ha.s been since acknowl.'dged and allowed of ly the Chief Sachems of the Indians, and their trilies, and particular- ly was diown to. and acknowledged, and allowed of, by them, so lately as the ttli day of August, 172(;. That after the ])eaci-of i;tre<'ht whiihwas al.so atten- ded by a |)ea(v with th<- eastern ludi.iusof New Kiiglaiid, the said John Leveret loiuied to him.Mlf an intention of resettling the said land, with all po>-.ible vigor iiiid diH- pMtcli: but, in n>ir;inl, idl the old settlements were de- molished ; apprehendnig the uiidertal iig l.e-deed. and hearing date the 13th day of August. 1710. for a full and valuable consideration re eased, assigned, couveyed and confirmed to the said .b.h.. Leveret, as wll the sai.I ,leed from the said Mada- kowando to the said Sir Wm. Phipp., ,, ,,,„ ,„ ^^^^ tracts and parcels of land thereby granted and conveyed t. tlu. sai.l Sir Wn.. Phipps. and which are mentioned n. I.e sa.d dee.l. to be then in the seisin and po.ssession <> the sa.d Leveret, his heirs and assigns, to his and tlieir only proper us,> and benefit, lorever. That the said John Leveret having thus a secare title m hnn to the ..aid tract of land. l>oth by gran, from the 1 n.wn, and by purcha.se fron, the lp,;iM„.., which is al- ways held inviolable in these paHs, and having associa- ted several enth-M.-n of ,.o„siderabb fortune to join wfbium. cttlinir and improving these laud, la- the "■^\*"- ""- '• "'•• -nc. the s,.id dohu Leveret by ,:;;"*;'"""■"" '"""■'"^•'"'"••"•Hthdav of August ''';'■"•'""""• I.i"i"-I the petitioners, KhM,, ,• , Nathan,c||I„,,h,,., H,.„„.ah D.vi. |J..,, , u.ul Sn- n». lUlicld.IobH i;:.dlordMu.| Spencer Phipps .s,..„. dates, to. ndw„hh„nM.|ri„ th.. said i-unls and prem ■ '-.-•.v-,viM.toe..,|,of,b,.u,s„..l, p:nts.„dsha,esof thesa.diaud.asiu the .s^d .Iced .s particularly men- 124 OPINIONS OF EMINENT LAWYERS. It tioned ; and by another deed of association, bearing date the 15th day of the same moiith of August, between the said John Leveret and the last named petitionee -i of the one part, and the petitioners, Jahaleel Brenton, John Clark, Samuel Brown, Thos. Fitch, whose right is vest- ed in the petitioners, John Fitch, Adam Winthrop, Samuel Thaxton, Oliver Noise, Stephen Minott, Antho- ny Stoddard, Thomas Westbrook, Thomas Smith, John Smith, Joseph Appleton, whose right is now vested in the petitioners, Nathaniel Appleton, Thomas Fairweath- er, Henry Franklyn, Gilbert Bant, Benjamin Bronsdon, William i;iarke, John Oulton, Jonathan Waldo, Corne- lius Waldu and John Jeflries, of the other part, reciting the several deeds aforesaid, the said last named petition- ers and those under whom they claim, as aforesaid, are admitted and joiuek-houses, with a covered way fn.m them to the wa- ter side, to .secure the men from the incursions and inju- nes of the Indians, who daily resorted there in great numbers, and ofttimesthreatoned those empfoved in build- ing and clearing the land, who used several stratagems t<. get them f.n„, <,ft-tho.se lamls; an"»l.s, ... c-aptaiu an,l li(. noKliers. whom thev paid and Hubs.sred in the said bl.H-k-hous.s, and who"w,.re pro- vided wi,b gr.'atu.n.l h.umII artillerv to d<.fend them- selves and th.. work..H3n from the att^icks of the Kreuch Indians, at tlie «ule charge ui" the md a*»io«iatiou. II! "H !ii • S-l 126 OPINIONS OF EMINENT LAWYERS. That by this means, notwithstanrling 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 Dumber of inl-abitants. and actually built and erected several houses thereon. That in June, 1721, the French Indians, to the num- ber of 200. surprised, took and burnt, one of ihe peti- ti-:ners' sloops, and killed one of their men, and took six captive, and then innnediatelymade up. in abodv, to the block-houses, and the next day attacked them with Hre-arms for several hours, and used several devices to have burnt the block-houses, but wore defeated by the courage of the men employed by the petitioners ; but in this attack the petitioners were great sufferers, the In- dians having killed one and taken six prisoners, burnt their saw-mill, n large sloop and sundry houses, and kill- ed many of their cattle ; but notwithstanding this great destructi(m made on the petitioners, they still kept and maintained the two block-hou.ses with men and warlike stores and provisions, for .several months afterwards, al- though the government of the Massachusetts had pro- claimed war with the.se Indians, and the other eastern tribes. That the petitioners, iKMUg by this war incapacitated from pnr.Muing ihr settlements they had so successfully iH'gun, were obliged to Av-^U therefrom ; but they yet held the two block-houses ami ileleu.led the same against a sii'ge laid to it by the Indians, for twelve davs togeth- er, and killed twentv of the enemy; and apprehoiwling the .same might be of gre;;t sc^rvice to the Ma.s.sachusetts government, in carrying on the war. they made a tend- er ofthemtothe government there, during the wur, THE king's prerogative ABROAD. 127 and until the petitioners should have occa.sion to use them for the purposes at first designated ; which offer the government accepted, and to whom tliey proved of great service in the war, and were the sole means of keeping that part of the country from falling mUi the hands of the Indians, and have ever since continued un- r the protection of the go.ernment; and since the war ided, a truck-house is erected in the block-houses, which are used as magazines, or store-houses, for Indian goods. That, on the ending of that war, the petitioners again resolved to continue and go on with their said settle- ments, and for that puri)ose they applied for and obtain- ed a letter from Samuel Shute, Esq, then Governor of the Massachusetts Bay, to the Chief of the said Pei;obscot In- dians, to facilitate the petitioners' gcung on with, ond finishing their said settlements. But soon afterwards an- other war broke out with those Indians, which then pre- vented the petitioners' proceeding further in their intend- ed settlements ; but a peace being again concluded with them, some short time Uelore Mr. Burnefs coming to that government, the petitioners, being still intent and resolved on bringing forward and finishing ihe said set- tlements, obtained a like letter from Ciovernor Burnet a.s they had In^fore done from Governor Shute, and were going on to settle and improve those lands with all pos- sible vigor and despatch, and had actually got a minister and 120 families rea.ly t.. go and settle in (me of the .aid inUmded towns. But to their great surprise, disappoint- ment and loss, tlie petitioners have met with an inter- ruption herein, from David Dunbar. Es,,.. Surv-vor- General of His Majesty s woods in America ; who " be- ing waited on by a number ol" the petitioners, Imth for- m ' irt ■V 128 0PINI01V3 OF EMINENT LAWYERS. Ill; bid the petitioners from going on with the said settle- ments, and informed the petitioners, that he could not permit 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 there- to ; upon which the petitioners informed Mr. Dunbar, that they thought it their duty to lay before His Ma- jesty, 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 pur- chase from the natives, and have had the possession thereof for so many years, and been at .a very great ex- pense in erecting the block-houses and several other buildings thereon, and defending the same in the man- ner byfore stated, and their endeavors 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 vith all possible despatch, which being of great advantage to the Province of the Massachusetts, and His Majesty's interest there ; the petitionei-s, in considerati(m of the premi.>truct (H disturb the petitioners, in carrying on their settlement* THE king's prerogative ABROAD. 129 there, on any pretense whatsoever ; that so the peti- tioners may be quieted in the enjoyment thereof, and carry on the settlements intended by them, without mo- lestation. 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 - the Massachu.setts Bay, in New England, and of the petitioners, and have heard counsel on be- half 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 inhabitants of the said Pro- vince of the Massachusetts Bay, and the several affida- vits 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 said 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 raid tract of lands, lying between the rivers of Kennebeck ai I St. Croixj is (amongst other things,) granted, by the said Charter^ to the inhal)itant8 of the said Province, and that, there- by, power is given to the Governor and General Assem- l)ly of the said province, to make grants of land within the said limits, subject to a proviso, that ni. such grants should be of any Ibrce, until their said late Majesties, their heirs or succcessors, should have signified their ap- probation of the same. It appears also, by the said Charter, that the right of 18 • \ ' i : ! I ■ ! -Hi .Al 130 CNIONS O"-"" EMINENT LAWYERS. .: \ government, granted to the said Province, extends over this tract of land. It doth not appear to us, that the inhaf;itant3 of the said Province liave been guilty of any neglect or refusal to defend this part of the country, a.s cnn create a for- feiture of that subordinate right of government of the same, or of such property in the soil as was granted fo them by the said Charter ; it being .sworn by several of +he said affidavit-, that a fort was erectf>d 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 Coun- sel of the Province hath always been cliosen 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 coun- try granted b\ tins Charter, and the great improve- ments made in several parts of it. %ve conceive that will not create a forfeiture, because, in such cases, it is not to be expected, that the whole should be cultivated and improved lo the same advantage; and whether there hath been such a neglect, or non-user of any part, as may amount to a Ibrfeiture, ■ -ist 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 mirfi f persons desi- rous to settle there ; nor can the Province grant those lands to private proprietors, 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 -^ -*everal of the petitioners, or their tenants, appear to be still in the possession of some parts of the said tract of land. Some objections were maile before us, to the nature of the grants and cv>Mveyances under which the peti- tioners claimed, and Ihe manner of deducing down their titles ; but we concrivf. tiiat in (juestions of this kind, cVest Indies, and upon encpiiries of tins nature the same regidaritv and exaiihess is not to be expect d as in pr vate suits con- cerning titles to lands in Knglund, but that in these cas.'.-s, iho principal regard ought to be had U) the posses- sion and the expenses the |>arties ha ,e l)een at, in er.- deavoriug to setth' and cultivate su<'h lands. Tiierelnre, upon the whole matter, we are of opinion, that the jietitiouers, tiieir Lnants or agents, o.ight not to l;e disturlu'd in their jtos.si-.H.Miou. or inierruptvd in carrying on their .settlements in the lands granted to them, within the district in ipi 'stion. 1' YoKKK. August 11, 1731, C. Talbot. THE king's prerogative ABROAD. 138 (12.) Of Hie King^, right to tU ivood^ in the Proviiice of Maine, hy Mr. West. To the Right Hon., the Lords Commissioners, for Trade and Phmtatioii.s. My Lurds ; In obedience to your Lord.hips' commands, I have perused and considered of the several papers relating to the memorial of John Bridger, Esq., .^urveyor-General ol llKs 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 Massa<.husetts Bay in opposition t« the right of His Majestv, to all trees' fit . >r mascs. of the diamet^-r of twenty -four inches and v.pwards at twelve iiu-hes from the ground, growing Av.tlnn the Province of Maine, in An.erica, ^s founded upon a ,suppo.sed purchase of the said Province of Maine I'V the Province of the Massach isetts Buv, «,f and from the a.<..,gnees of Sir Ferlinando Gorges, ;he per.s any lau.ls, tene,u..nt« or iHn.Htament.., nrauy g.HKl. ,>,■ ,dr.tt"ls, «„,| tb,- .same to l'-;t>*c, ,:;.Mnt, demise, ai,e„, Urgaiu, sell and d.sp.,sr of ns other .ur l.egr p,M.ple of this our rc>alm of England' .H! ^*«# 1 n t 134 OPINIONS OF EMINENT LAWYERS. 'k or other corporation or body politic of the siime, may lawfully do. In the fifteenth year of King Charles the Fir.^t, t' Province of Maine Avas ' hundred and titty pounds, give and grant all his ri^, and title in and to the said Province, unto John Usher, of Boston, merchant, his heirs and assigns' hut whether » it was by way of absolute sale, or way of mortgage, doth not appear; and the said John Usher did. after- wanls, in the year l(»7ft. convey the same unto the said corporation, as appejirs by the printed journal o' the House of Representatives of that Province which was sent to me by Mr. Duminer, their agent. It may, my Lords, be made a (iuesti(m in law. whether that corpo- ration, which was created b\ King ("liarles the First, could legally punli;ise the said Province of Maine, ina.s- mnch as the clause of license docs go n'> further than that they might purchase binds. ».S:c , xh any other cor- poration or Innly p t.'/" and eo„»e,„u.nti, the Previn... which „„. ,ran Cl to h«t c„rp„ra„on. a,„, „„ ,„nd, pnreha.,ed hv that eilv ra „ „ were revested in ,he c„,„„ : „„d. therefore the If^ ;'t "' ■^■-"- ^-^"-Hl .-. he „„ otherwi* en i tied unK.the Pr.,vi„ee „t Maine, than l,v ™,n,e new tit e wlueh n,„„ have aA^erned „n.., then, suh,.,„en, to , „corpora,,o„ hv Kin,. Hi„i„„. „hi,.h i. i„;„.^,::: " ' ;"""'' '"">■ ' "■ ""'"■ lluTe i. no li,.e„,e i^,,„,e<. ::":"■:;," '■«■ >» i" -r ... .heir .aat 1 2 The,ri,u, Charter w„. granted h, the lat. Kin, Wi --M,,e,hirdve„rorhi,re,,n.in„hiehCh„r,e it "Wvahh.,.ha,,,,.rei»n,,.av tion. in the „,„',' "• " ■■•>n."ra..on, l„„ i„ ,h.. ,hi„, i,..|r. A„,l .o far ■., , "■' '■"'■P"n,l, ■, .,.in,r..eiv..l. ,h„,. hv Ihi, ...Her. he.v are „o, „. , ha -ted int., a eo „» ' ^ . I.... .he very, er:n,„r the Charter are. that the Kin. 7 ';'■'■'■' ;""' "• I«'".'<' 11 ral eo,n„rie, ,2- ;:;:"■ '-7'""; "U ...eeh.v,he„„:: '"'"1 " .- Pi...n. .0 de,non..r,.,i„„, th«, K,m.„ Will,.,!, I r I : i 1 1 1 136 OPINIONS OP EMINENT LAWYERS. did, at the time of granting this patent, consider all the countries therein named, and particlarly the Province of Maine, as vested in himself, in the right of liis Crown, and, therefore, he does miite and incorporate all those countries, which were before several and distinct, into one real Pnn'ince, and does then grant all the lands in- cluded in that Province, unto the inhabitants of the Province of the Massachusetts Bay, in which denomina- tion and grant, the inhabitants of the Province of Maine, &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 ' ■ the Massachusetts Bay; ail these Provinces, there- fore, are now to be considered as one ; neither is it pos- sible, that one part of the Province should be the pri- vate pn)perty of another. It is true, that the King does grant a power i.nto the General Assembly of the said Province, to make grants of lands, uncultivated, lying within the IxMUids de- scribed in and by the Chartt'r ; but that grant d()es no- ways extend U) one part of the Province more than an- other, but is ecjual to them all ; and. therefore, subject to the last clause in the Charter, by which all trees (jf the l)efore-mentioned size, are reserved to the Crown, and, c(mse«pu'ntl\ , the General A8.sem))ly of that ProviiK • cannot make any grant of hums to private persons, without their being subject to that clause of rrscrva- tion. The act of Parliament, Nemo Anne. |)age .'iH7, extends no further than the reservation in the Charti-r d(H's, only that pren»gative, which iK-iorc subsisted sii'.giy on the Charier, is nov confi ned and established liy authority of Parliament ; and therefore, u{M)n tlie wliole matter, THE king's prerogative ABROAD. I37 I am of opinion, that the Kaig .s legally entitled to all ee.sot the pi-esoribed nize, growing in the Province of the Ma..aohusett,s Bay, as it is described and bounded n the Charter of King William, and particularly in the Ircn.nee ot Maine, excepting only those tree. ;ituated inland, winch were legally granted to private persons be ore u. Charter 4- Carol i Prind wa,; reversed ; and which 1 humbly certify to your Lordships. November 12, 1718. - •^^''■"- ^^''^'^• W Mr^a>u^, opl„ion on the Khuj\s rujht to the To the Right Honorable the Lonls Commissioners of Iradeand Plantations. M\- Lords ; In <.l dicn.'c to your Lordships" connnands signified t<. .ue by Mr. Popple', letter ot ,he 21st of dune, ^e by your Lordships are pleased to de.sire nn opinion, in ponit ol law, whether the Act of the eighth year of His I^c.ent Majesty, for the further encouragemJnt of naval stores, and other purposes therein n,..nt,.,ne,l, wherebv it isenacte. lor ,bepreservat.,nofubitep,uetrees-for n.ast.ng the ,oy.I n,n, ., bat no persons witbin the colo- n.- oi Nova Scotia, New Hampshire, tlH. Massachusetts 5...,audIrov.n.eofMaiM.., HI. Island ami Provi- ';'"••'; "-^'tion. the Narraganset Count, v or King's rovn.ceau.1 Conn....,i..Mt, in N-w Knglaml, and nX ork an,l New Jcnsey. n. .\„u.nV,.,, .hall , ut, IWI .• ,i .K'stny any ub,t..p,Me,rn.s, not growing in anvtown- "t^T : ':"""'^ ""■'■•""'"•"'-• I-ticu!ar p;nalties. -beUu.,,b.sA..tdoes, ,n.ny manner, tai.- away ^hj nghttlu..rownhatb..p,v..,v.....™,,,,,^^^^^^^^^ 1 « isd OPINIONS OP EMINENT LAWYERS. mi in the Massachusetts Charter, of all trees, of the diame- ter of twenty-four inches and upwards at twelve inches from the f^ound, gi-owing upon any soil or tract of land in the said Province, not heretofore granted to any pri- vate persons. T have considered tlie Act of Parliament and the Massachusetts Charter, and I apprehend it can never be supposed, that an Act of Parliament, made on pnrpo.se to guard, by severe penalties, ihe King's right and pro- perty, in one particular instance, should, hy a strained and distant ini])licatioii, take away and diminish that right, in a matter noways the design or in the intentiim of the Legislatuii'. The King, h}' a general severati(m in his Charter, was to have all trees of such a growth, not expressly given away in townshijis. or out of them ; now the only provision made hy the Act oi" the eighth of the King, and that, 1 think, a wvy reasonable and necessary one, was to prevent his trees, nut i>f townships, from being cut down ; it goes no i'lirtht-r. The danger and mi.schief was. that such trees as lay out (»f town- ship'*, might, without any {liscov<'ry, Ite cut d*c and practi('iil)lene^s of doing it, and the ditliculty of having ex idence to convict the offender. This is tin' scope ami design of that clause, and it nu'ddh^s with nothing else, but leaves the King's right iinimpeached as t(» tree- in townships, which coidd not, probiibly.be cut down without tin- knowledge of the Kings oflicers, and where there coidd be no like- lihoinl to cut down such trees, being such as perhaps, were very necessary I'oi' shelter or oiiianient. If the woni'^ of liie Ai'f hati bt>en, no license shall be itMpiired hut '"or trees growing out of townships, thai, perhap?!, THE king's PREROG4TIVE ABROAD. Ig^ had made the case diflerent; hut the words are, no per- son .liall tell, cut and destroy any white pine trees, not grow-ng m any townships, so that the cutting of trees out of townships, without license, subject,, them to the punishment inflicted by this law, whereas the cutting of white pnie trees in township.s makes them now (the Act <)t the !)th of Queen Anne being repealed by this Act,) only liable to an information f..i- the trespass, or an ac- count for tlie value and profits of the trees ; and all the diflererxe is, the Kings 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 protection and guard of the common law. not ouly in giving a remedy ior the violation of it. but iu prex ntiug all atteu.pts upon It, by that known rule of law, that iio implication shall prevail against the Crowns interest and prerogative. July 10, 172(3. *^"^'^'- ^^'*'^' (U.) The opinion of th, Atfoniey awl Solieitor-Gen- a-al, Yovle tlie Crown, by the said Charte/, as to trees . lALBOT. m (15.) (>/ tho Kuufs right to iniiie*, in New Jersey by the A ttoriuy ami Solicitor, Raymond and Yorh'. To the Right Hononi)>le the Lords Commissioners of Trade and Plantations. May it please your Lordships; '" olHHlience to your Lordships' commands, signified to ...s by Mr. Popple, an.l requiring us to consider the annexed extract of a letter fnmi Mr. IJumet, (Jovernor or New .fcsey. dated the twelfth daA" of Ooceniber one thousand..sc.ven hundred an.l twentv-two, in relati.m to gnl.l and Hiver mines said t„ be fi.und there, r.nd to rc- l>«"tournpini(,n, in point of law, what rigl.'t and title 1^ remain.ng t<» Ilis Mije«ty, in the .said gold and silver ^7^1: H ■ ■ • 1 ^^^1 : -flit • ; ^^^^^ i 'l^^H f 142 OPINIONS OF EMINENT LAWYERS. M J"! [I I*, f.f: '■' a - ifi f f mines, and how far the pr« .... proprietors have the right in the said iiiines, according to their hieveral grants. We have considered the casc^, as stated in the said extract of the letter transmitted to us, and have looked into the Charter granted to the proprietors of New Jersey, and do certity 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 anything that has appeared to us ; but we beg leave to inform your Lordships, that we have not heard the proprietors, or any y erson on their behalf, upon the subject matter of this reference, not being directed by your Lordships so to do, lloBT. Raymond. November, 30, 1723. P. Yorke. (16.) Of tlie roijal rhjld of E/^chmtH in Virginia, hj the Atiorneij an<1 Solicitor-OiiKval, Somer^i and Treror. May it please your most excellent Majestv ; In oltcilience to an order of Council, hereunto an- nexed, we hiive considered ui' the (piesti(m ■ AVhether escheats in Virginia may be granted belbre tliev actually accrue ? And it e and cuijiiiikii .^k-immc. ;is (if the manor of Kast Greenwich. I'lic eonse(iuen(;e of this • tenure i.s, that where any jter.son dies without heirs, his land will esch«'at to the Crown, as having the imme- diate seigniory ; and we are of opinion, that e.soheaUs of THE king's prerogative ABROAD. 143 this nature cannot be granted, before +hev happen otherwise than by a grant or alienation of 'the seign- iory Itself, which, we suppose, is not intended to be done. There are other escheats upon attainder of treason which are n.)t incident to the tenure, but belong to the Crown, (as a prerogative royal,) of whomsoever the land be liolden. It seems to us to be v.ry doubtful whether such royal escheats may, in any manner, be granted belbre 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 iorteitures for treason in other hands. J. SOMERS. Thos. Trevor. (17.) 0/the peculiar E»hmtM in New Ja-wy, which u'm in the ha?»/.s of Propriefarie^^ hy the AftarneyGm- eval Northetj. To the Right Honorable the Lords Commissioners for Trade and Plantations. May it please your Lordships ; in humble obedience to ycnir Lordships' commands signified to me by Mr. Topple, Jr., your Secretary, I have considered of the annexed letter and papers there- with .ent, and have perused the letters patent and sur- render, mentioned in the said letter ; and am of opinion, that the fiiu's. forfeitures and escheats in New Jersey iK'long to Her Majesty, and not to the proprietors of the soil of that Colony ; for. as to the flues and forfeitures lor offences, they were not granted to His late Majesty, KiuL' James the secon.l. when Duke c.f York, by the let- ters patent granted to him of the Jerseys and other ^11 AAtk y 144 OPINIONS OP EMINENT LAWYERS. lands, under wliicli grants the present proprietor? claim. And, as to the escheats, the vvliole tract was granted in fee to ^he Duke of York to be holden of the King in common soccage as of his manor of E , Greenwich ; and the inheritance of part being grante' away, bj the assigneed of the Duke, to other perso:.^ in fee, they hold of the Queen, and not of the pro] --i- etors ; and, therefore, the escheat nuist he to Her Ma jesty. As to the appointing of rangers of the woods, the in- heritiince of those woods lieing in the proprietors, as- signees 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. Edw. Northey. October 19, 1705. • ' ..< (18.) t... the eschmt of iictjrms in Jamaiva, by the Solicitor-General Mar faff ue- To the Right Honorable the Lords Commi.ssioners of Trade and Plantations. May it please a our Lordshij. , ; In obedience to your Lordships' commands, signified to me by Mr. Popple, Jr., in Iiih letter of the 12th of March, I have considered of :l,e petition ol" Mr. James Whitechurch, and the .several papers then ■. iito annexed; and in answer to the qn(Bre h>! sends me, from your Lordships : Whether the limitauou ol .ive years' pos.se.s- sion, mentioned in the *,(t of Assemblv for confirmin-i' and securing titles to estatr«,do'}s t)iiid the Crown ? I do humbly certify to your Lordships, that it is my opinion, that the Crown's title is not lM)und by anything in the said Act, because tiie plea of five years' posse.ssion is THE KINGS PHKKOGATIVE ABUOAD. I45 only t(, har a plaintiff" or demandant that is not a mi- nor or under coverture. ),oth which disabilities or rather prolections, are in no wi.e applicable to the per- son that wears the Crown, which .hows the design of the sa.d Act to be only to bar such demandants and pliuntills as are sometimes liable to those incapacities But, notwithstanding the petitioner cannot make title aga.nst the Crown, by Ibrce of that Act of Assembly, yet I do Iu„n],ly conceive the inquisition, which finds the Queen s title, is not valid nr law, and consennentlv, Mr. Wlutechurch's right to the negroes n.entioned in •said wr.t, .snot thereby .sot aside; for the inquisition does not find the negroes mentioned in the writ to be the .same as Charles Delaniain died .s.-ised of, but only .^ays, that the jurors do believe tiienx t<, be the same and, therefore, since it is ass.rte.l that the negro woman fi-om whom the rest have issued, was, n.anv years ago, «ohltotew,te of the petitioner. l>y the administraL oi \VrothDelamain, whose property she was at the said Wroth Delanmin, ami that the said Charles Dela- ma„, was never seised of her, or any of her off-spring, which, d true, will take away all pretence to an escheat and, after .so h.ng and uninterrupted enjovmenr, eve- J th.ng ought to be presumed, that can be ihou^.t of ia ♦avorof the possess- ; and since this inquisition w^.s l^et on foot in the absence of the petitioner, even when he was out of the isle, after all his papers had been de- stroyed by t:.e fire at Port Royal, my humble opinion is that ,t will be more for Iler Majesty's service, to direct a grant to be made .,./ rorn/>o,;n>,f>o» f/f.hm of tlu" petruoner, than to give any coup .,„„,, ,., ^he grant V^'hich Brigadier Han.lisyd has n.vde, of the eleven ue- 146 OPINION'S OF E' LV^NT LAWYERS. •♦ groes to the Provost Marshal, and Socretarv, Mr. Bigby. James Montague. April 2, 1708. £ as - ' fit (19. On the e-'^fhuit of to/z/icn/ris. in Jamoi^:a, bij th^ saint Inicifcr. To the Right IlonorahU^ the Lords Commissioners of Trade and Plantations. Miiv it |)lea-ur Ij )rd-ni|iliancf> to ypiir Lni-d-liips" de-ires, signified to me hv Mr. PoppU's Iftt.M- of tlic 12t!i of tliis instant, Noveinhi'r. 1 hav- iH'rn~c-d the extrp."t of IV-igadier Han- disyd's letti>i-. sent ni< enclosed in Mr. Popple's letter, re- lating to some aiuliei-irris>ci/,c(| in ■Ianiaiea,and the jirose- oution tli'.i"U|Min. ;ind am liiiiiil>Iy of opinion, tliat the GoviM'lioi' and (^>iieciis( iii>ril there In v <■ dojie idl that l>v aw ean l)e done. |or r efo\ er\ o f thi- aiulterjrris for the Queen; for a jin-\ hii\r it ni tlu'ir piuer. whether they will gi\(' a giMieral vi-rdicl. or a Npecial verdict, and the most that the (^iieen s coun-el can do. is to (h'.sire thein not to take up.ai theiii the dt n iniinatioii «if matters, whiidi. in point of l.iu, are di-pntalih', Imt find the faetH speciiilly, aii'l -nonnt tiie | ^i nl- of liiw to the iudirment ofthet'oiirt and llii-. I nnder-iaml. \va- done li\ the Qt'een's Attornex -(ienerul ami ^lr I'nodrick ; Imt the jii- ry refi,-.eil to give ii special verdiel, and foiuid generally for the delendaiit, air^iin-^t the (^neen, 'i'hi- refractorine.sH in the jin"y i< often tiiiie>; seen in onr (units here, in England , and winii it does lia|»[ien the (^neen s v'onn>el are forced to snhmil, indc-s they can hope to uet a morfi favoraMe JMi's retnincd. and then iiidr> thec^vheat o/fa „(, au.I no,w., in Ja hiffhe Af'>,nu>i.(rc,t,ral NorfJu-,/. '!<; the Right Honorahle the Lords Commi.ssioners of liadc and Plantations. May it please your I.onM,ips ; Tn ohedien..e toynur Lordships' ' commands, signified ♦^> ""• ''.V Mr'Popple, I have considered of the enclo..ed accamt of eschea.s, uh.chy.u.r L.rdships received IVom , ' "■" •^"•'•"'•'I'l n,n.„lt,n. with his ohservations -icon, audi do mux hunddy certify ^ our L-rdships thaM. anactpa...d2IstNoven>her, I7(.:;, entitled an "•■H"'- nns.Mg a revenue to II,,. Ma,e>t V, ^c , it is nrovi- ''"'•""''"^^^'•" '-• M^'i-.;, < .-rents, lines, lorleit- "'vs and escheats, arising w, thin the Island ..f Jamaica as the impost and rev, ..uetherehy granted, shall he an^ •'7 7' 7'7I'-'''''''-'''->''ir-t..fthe.o.ernment ;" "-''-'-"'•'-" thecontingeu,,.harge,,lH.n.ofai,d ''■'•'""--.Mitentorpurpo..e. uhat.oe.a: la.t not :'l'— .. ilc, Mai-ty'H power of,.,,, loniu. and remit- t-.g such hnesandf.rli.itme- -"1 ( t: I JoM thereof paid ) ■""' I^^Mr'"I"i:.led tot.e fort i lie;, | „ ...S. ,-'V.*' ""■ '"-^^ '"■'t''.etion <,f die I!.th of F,.|a„arv " '",.:'"■ '•''^"'■•.nr. restraining Inn, IV ..jling "• 'I'Hl.MlUttcd to lit) tji ciciiuiUi, tai au jic;;oujit thereof .shall U- 148 OPINIONS OF EMINENT LAV/YERS. Hi Briti'in, and directions reccivod tVom tlionco, I ci\uiiot .say unytliiiietion ; fur they, that had discoNrr.'d the title oi' (he Crown, had reason to ha\e a jirt'l'ereiM'e in purchasing; (he same, whi(di could not. Iiv (he .■ic( i!iei«(ioned in the s{atute, he for less than they w.iv \,dii,d ,it h\ (he jury tindinf; the I'scheat : and. in rc-.ird, tin pmlit, of (hose esclieats are. by (hat .\ be sullicient for tha( jjurpo^c I (I,, lint ~ce any objection a-^ain.st alter- in.ir that insii uction. and permitting; the Covernor (o se'l from tiNir In (ime. a- he is nllowed (o do b\ that Act. \Miicli hadi been conliriiied , he beiiijj satislied that the value loiuid |s ;| rea-onable value, remitting accou'.i /* thereof, from (nne (otnne, tu Her Majenty. Kdw Noktuey AuLiiKt (i, 17ir,. THE KINGS PREROGATIVE ABROAD. 149 (21.) On the Queen's right of quit-rents, in New Yo?'k, f»>/ t/t( ■■^(iint livrtji^y. To the first quare, I am of opinion, the second pa- tfut, confin.iin- the ^nin and re.serving a quit-rent is to be taken, the quit-rent oy the first grant; and. there- lore, that n.u.st be accounted for from the first grant, the hind ))eing charged with it. To tlie .s,,,„n.l qiufre, I ani of opinion, this will be the same as the other, and will ascert^iin the quit-rent but not discharge the arrears ; and the words, in lieu of all otherqu>t rents, Reimport no more than that ^he lands are to be lu.lden un.ler that rent, ar.l under no other rent, 8erv„.e, &c,; and. therefore, no of er duties- &c but that .|u>.-rent, and the arrear. thereol, can be demand-d lor those lauds. To the third qua,;. I am <.f opinion, tlie writ of ce.s- •sivit is.mK where a tenure is .reated bv tlie grant in n"'-nMn,, whi^v" ""t l-ing uithi,, ,iH- statute n" ^nia ernptoro. t.r- rar.nn.) tl.e writ of-c-ssav-t lies Flowever, th.- .ta...tes ot Uestnnus.er L', and (ll.u.ce.ster, which gave tl... writs <•! "— :.Mt not bM^.ngb....nput . prarfce on the set- tling that rolony, n..r enartnl th.-re sin York. The pleading is infor ,a! .c, l.,,ih >u\r<. f,,,- (i,sf the I'"' •'"''♦•"■ -l<'|-.'M,l:„.t, an.^;..gap.v.scriptio„ ,„ ihrin- hahifantsof th..tou„ uf .Su.lhtoii, to tak.' uhajr,, ,,n the high seas and ..oasts ol the same .u,.l ..Mn^rt them o, th.-ir own u.so, JH id, for although royal fishes mav he cla.niL.i bv pre*::;-tion. y.-ta prescription c.muyt bc'ijud THE KING'S PREROGATIVE ABROAD. ISJ in the iiihiU)it;uits mu] N/.w v i i • «.-™ ..f E„„a„,, w .r^ne ; ,,'r* """"' '" '"^ ticii can ho f I.« • 'neuu,rv, no presorip- hirr thn 1 . ^^'"''^ ''"^ Crown; next the trave-s- nig the (liiy and year InifJ in ♦!.. • r • '"^^^-s- ul..,I... • r '^""" *''^' '"^^rnmtion, and the Hhale.s connn^r t,, his hands hy lunUna ami hi -.;^in. The pro.ecuto...^.ep.i!::L: ::::;: jvkMhat n.yal ii.sh cannot be ch,!. ned but bv ^n Z ucnunrcd to, bi.ranse not well alle-ed Tlie rejoinder, denying the Que^n cannot be diveated ^^ grant, ben,, t..ken !, protestation i.s well ^^ Ih that beni- matter of law and not i'.M ■ i ■ ^^ ' '>" the traverse of th. nro' V ' '" ''"'"'"'^ '''''"^ mm for M •"^■^'•'■'P^"^'Mva,sweIl,andno,K:ca- ->n fo. the pro.secut.,r',s demurrer; however, the plea of the d ,„„,,,,^ b.in, illM am ..f opinion, ud J r ' ought to 1h' .i,n ,n for the t^ueen. J""fe'"UK July 30. 1713. ^^'" ^'''""^"^^ • (240 ?/.^ <^nio„ ofthr Attorn,, a„a SoUrifor-G^,,. Unj or A,,h,n^u^ Neuy;,>.nJho.f, ,rhirh ha^H-on .n-ant- edto 6o' ii.or,,, f'ahrrt. i,> 102.1 T.MheKi,htno...>r.ble, .he Lords CommisHoners for Tra. „,;„ tl..Lt, ..^ a ,i,,|,„,,r.:,i u, your l,.,„|,|,i|„ „ „„,(,,,. _" '11 )l II l: LI 152 OPINIONS OF EMINENT I.iWVKHS. great imporUiico. 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 (me containing a representation made by the Board of Trade to His Majes- ty, in 1718, relative to the state of Newfoundland ; the other ccmtaining a variety of authentic papers, some of which are referred to in the said petition, and which appeared to be necessary for our informatitni upon this occasion, which l3< - iu.rs.and . ^ ThcnloreCary .lied without heirs and tha.K.ng J,,... ,,,,,,,„, ^^.^. of escheat, dated the) ah d,.. of January, in tl,e !;.!,.;;; year onus ..e,gn. granted to Dorothy Cary. and dohn B.Hle,an.l,lK.u-h..i,s, the said five hundrclaeres J^'y^-'^T'7 '-it.'s, that John Bo,lle intennarr: -d -H. Khzabetl. tlny.rand-d:n.ghter<,r tbesaid Don.hy !:7;.T,^^;^"'' '•'''''■ (^"^") •'''''•' -'''-^'-'-^ adtl.t D.u-othy(-.,, by her will, gave t...f,.bn,., nd TI.ou,as MX h,u.dred pounds .aeh, at their ages .,f ,.ne- ""'-^"*;'".- -"» ''" t>- -t of her e.state, land.s. tone- >pts ^-,t.. the saI.lC„vM,.dle,fi>r his lift., and to ''-»'•■■'-•< Ins bnd,l:nvr„lly„. be ^.gotten, with sueh ••--'n.h.rs over. n. dH.uh ..f i.s.ue of C«ry, as in the ;•' ■';;■ --t.oned. TI.. .X.., Ukewise recites, that •''''''''^"'•''•' '''•••''^''•■'■'''•''- -.d Theodore, IK I. .on ) 11 i ^ I' 154 OPINIONS OP EMINENT LAW^ ERS, m I 4 tracted great debt?* in endeavoring to improve the estate ; and that Cary Bodlo, hy reanon of the entail in Dorothy's will, coidd not sell, without an act of the As- sembly for that purpose ; and, thereupon, trustees are appointed to sell one thousand one hundred, four hun- dred, 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 following objections : 1st, The five hundred acres are recited to have been escheated to the down, on the death of Theodore Cary without heir, and the grant thereto!", by King James, is mentioned to be after his abdication, viz : on the 14th day of January, in the fourth year of his rt words in her will devised the estate to hiui during his life (mlv, yet the imuiediate following words (and to the h Mrs of his body lawfully to be begotten.) eidarge his estate, and make him tenant entail, and, con.>^c<[iicntly, he has power to sell without the aid of an Act. 3d. I conceive the want of a saving clause in this Act, to l)e a further objection against Her Majesty's approv- ing the same. iSl.M. IIahioirt. July 12, 1707. |i u. i. THE king's prerogative ABROAD. 155 (20.) The opinion of Mr. Jmhmn on the Kinfs right to the ivhitepine trees growing on the Ktnnehech River. To the Right Honorable the Lords Commis«ioners for Trade and Phintations. May it please jour Jiuidship.s ; III humble obedience to your Lord.ship.s' commands signihed to me by Mr. Pownall's letter of the IGth iii- Ntant, I have taken int., con.sideration the paragraph extracted from a letter of the Surveyor-(;e„eral of His Majesty s woods, in America, inse.ted ther-in, to-ether with the two law reports acv<.mp;un in- the same" The paragraph .states a claim tnade by the proprietors ol an extensive tract of land up„n bnth sides of Kenne- beckl?,ver, on which there is an abundant growth of the best pine tind.er and ^vhich tract the pn.prietors allege to be private property; not, as I conceive, be- " caiLse It IS parcel of til,, province of Maine,(within which only part of it lies.) b- t because it is not the propertv of the Province of the Massa-'husetts Ba v, nor indeed <.f any other corporate bodv. but i. the propertN of a ,set <.f private parties I iiave. likewi.-e, considered tlie cpiestion staled in Mr Pownalls letter, namely, whether, by the provisions of the statute ol the se.'ond of Ceorgc the Second, Cap 3-3 white pine-trees, of tlu- diameter of tweutv-four inches -•upwards ut twc.lvc inrhc. fro,,, lb. ground, gn.win.^ upon anv tract of laud po.ssc.^.sed under a ^n„,t of ,h^ Council „f Plymouth, may or may „ot lu- ielled, with- -'t;. licence frou. theC.own. audam liumblv of opinion that ,n case the .s,,il or tract ..„ uhich such white pine' trees g,-ow w i. piivate property before the Tth ofO.to- bcr, Iti'JU, they may be cut without a licence Irom the 'f k ill fr V ■;. * 156 OPINIONS OP EMINENT LAWYERS. Crown, notwithstiinding any provision of the statute of the 2(1 of Geor^re the Second. That Act appears to lue to have 1)eeu Intended to ob- viate^ the doubt that f^ave occasion to the question stated in 1726, to the then Attoi-nej- and Solicitor-General foj- their joint opinion, whose answer is contained in one of the reports transmitted to im" : 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 Massachusetts Bay. This doubt is now totally removed, and the single question that can occur on the 2d Geo. II., i.s, whether the soil in question was actually private property, before the 7tli of October, 1690 ; not whether it is within, or not within a town- ship. • The rlaim ofthe Kenncbeck company(the proprietors mentioned in the Surveyor-General's letter) is founded on a grant from the Council of Plymouth, long antece- dent tn tho 7th (\-t.)ber, 1690, and I am, therefore, of opinion, that in case their title be well derived, (of vvhicb I ,1,. nni pretend to judge.) tliey are exempt from the penalties .,1' the 2d Geo. II, I should have been in- clined to think so, had that companybeen a corporation, '>"t this i^' nnt now the (piestion, as they are a mere' partnership. But I think it my duty to remark to j-our Lordship,<5. that alth.mgh white pine-trees, growing upon the soil po8ses,>st.d by private persons, under a grant of the Coun- cil of Plymouth, are not the objectj^ of pn-scrvation un- der the 2d of G.-o. I[ ; v.t, i,j ,ase th.y do not gn.w within the limits ,)f .some township, they .rm lo come within tlu. provisions of the 8th of Geo. j.. (',,,, ]•) Mav 23. 1771. «„.„ i ' lUCH. .IaCK.S(,N THE king's prerogative ABROAD. 167 (27.) 2he opinion of the same conned on the construc- tion of the 8 Geo. I., for the preservation of tJce white, pi/ie tret.^ in New England. To the Ri-ht Honorable the Lords Commissioners for Trade and Plantations. My Lords; In obedience to your- Lordships' commands, which I had the honor to receive from Mr. Pownall the 30th of last month, I have considered th, clause of the Act of the 8th of Geo. I, Cap. 12, intended for the preservation ot ^vhlte pine trees, in several Provinces therein named, in America, and am ot opinion, that white pine trees' growing on any lands in the Province of Massachusetts Bav, not ciocted into a township, cannot, under the pro- visions and ivservatious of that statute, be, inanvca.se cut, felled or de.stroyed, without a licence froin the' Crown. I beg leave t.. add, that I conceive the statute .f 2d Geo. IL, Cap., .35, ha.s not removed the restrictio. . im- posed by the former Act, but has, on the contrarv still narrowed the right of felling, to such white pin^ Irees only, a.s grow on private property : and (by an explana- tion of the Province Charter) in the ca.se oi trees of a certam description, to such as grow „n land that was priv.nte i.roj»erty. before the 7th of October, 1090, I take it, that as the law now stands : 1: No man can n.t white pine trees in anv part of America, without a license, unless thev grow i.n private pro})(.'rt \ . li, Not in Nova .<;cotia. New England, New*. Jersey, "i- New V.,rk, unless they grow withia a ti.wn.ship. •^. That in th(5 Province of Massachusetts Bav, no man ;!i: I I ;» rfli IMAGE EVALUATION TEST TARGET (MT-3) // ^ / / l^ :/. ^ .0 I.I 1.25 6 2.2 20 \1± 1116 V] o>. /J /, ^.^/ Photographic Science^s Corporation 13 WfST MAIN STRItT WIBSTIR N Y UMO I 716 1 i7]-4}01 hi 158 OPINIONS OF EMINENT LAWYERS. can legally cut white pine trees, twenty-four inches di- ameter twelve inches from the ground, unless they both grow within a Township, and on land that was actually private property, prior to the 7th of October, 1690. How far it may be expedient to continue, or remove the restriction, as to property without the bounds of a Township, or in any other respect, is for the considera- tion of your Lordships and he Legislature. It is cer- tainly obvious, that though the law gives a protection to such trees growing on private property, which they would not otherwise have had, it deprives them, at the sanu- time, of another protection (the vigilance and care oi the owner) that might, perhaps, have been more effi- cacious, as experience has shown it to be in most other cases. KuH. Jackson. June 5, 1771. iiecoml. Of the King's power of Taxation. (1.) The opinion of five Attorney-General Northey that the Queen might direct to be levied a t,uv on the con- qiiertdjxirt of St. Kitten in 1704. In obedience to your Lordships' commands, signified to me the 4th inst., by Mr. Pi.pple, I have considertd of the annexed presentment of the Commissioners of Her Maj- esty's Custcmi.., an.l nNo of theextraet of Col.C.)dringt.m'8 in.vtruetions, and am cf opini,,,,, that those instructions are not material, in any Hort, (., the mat.e. coMtaimd in the presentment, it being only a power to lei and dispoH« of lands. As t.) the presentment of the Commissioners of the Customs, I a.n of opinion, that the officers of the English part of St. Christopher's had no authority by TKE king's PHEROOATIVB AJHO/D. IgQ vfrtue or the Plantation Act, m«de there for the four and . half per cent on ^ood,,, to levy the ^Jfor good, expor,„d from that part of St. Christopher-, lat^W gamed byconque.t from the French, that law extend^ -g only to .„ch part of St. Chi,topher', a. Mo^u, the Cro.,n of England, when that law wa, m,de b„^ Her Nl.je,ty may, if, he shall be «. plea^i, under her great Seal of England, di«ct and command that the like duty be lev,ed for g«»i, ^ be exported from the con! que^ p.rt ; and thatcommand wiirbe a law thert, Z M..je,ty, by „er premgative, being e^bled U, make ir«;at'b;"'>.'"r'' P""*" "'"•'-^^ --^ =on,ue.t,™d all that shiill inhabit therein. Jan. 13, 1703-4. Edw. Northev. haUytake off the 4unj ofjl,.. ^UUn^^er tonZ e^pt^jrorn payiny tl. .Uuy of ^ .ol. ^,. Z^ To the Queen's moet excellent Majesty. May it please your most excellent Majesty • My I..rd Vi«„„„tB„lingbroke having .ig„iM your Majesty commands ,., me, to consider „f the bu„„e« oftbe duty of five shillings per ,„„, laid upon .Jnch .h,p. he,. ,„ England, and the im,K„ition „f fi*;;, sol. ^ >o r Majesty „,y „p„,ion, wbcUier the «id duty ,„ five .l..ll.ng.|»,r„,„, l.,i„g unappropria-ed M,oney, your Mai I. n. that the Wonch ,ako off fifty ,„l, ^„ „„ 160 OPIWIONS OP EMINENT LAWYERS. whether the words of the Act must be literally observed, and the duty of five shillings per ton, on French shipping, cannot be taken off till three moiths after the taking off fifty sols per ton in France. And I am humbly of opin- ion, that the duty of five shillings per ton, bei 'j; unappro- priated, and the French having ffectually taken off the fifty sob per ton, on English shipping, your Majesty may lawfully direct the Commissioners of the Customs, to for- bear taking the said five shillings per ton, on French shipping for three months, and then, by the Act of navi- gation, laying that duty, the same will detennine. Edw. Northey. Sept 30, 1713. (3.) See th£ opinion of the Attorney o/tid Solicitor-Gen- eral, Yorke and Wearg, on the King's power of Taxu- tion over conquered countries* Third Of the King's Grants. (I. ) The opinion of the Attorney-General Treby,in 1689, rw a grant, for life, of And it (yr of the Virginia reventie. [A letter to the Attorney-General, with Mr. Ayleway's patent.] Council Chaml>cr, June 21, 1689. Sir,— The Right Honorable the Lords of the Com- mittee for Trade and Plantationw, having considered the petition of Mr. RoI)ert Ayleway, referred to their Lord- whips by His Majesty's order of the 3d of May lawt, pray- ing to be admitted to the o.Tice of Audit4)r-General of Virginia, pursuant to letters patent in that k'hulf, their Lordships have ordered a copy of the said letters patent THE king's 999ftGQAriVE ABROAP. 1^1 to be Beat to you fov your opinion, whetlier t^ie peti- Wr be legaUy .teted in the .aid office, and whether he be not obhged to give his personal attendance in the e^utior thereof, in Virginia, at W if Hie Majesty ahall require it. "^ ^ T , , -June 25, 1689. I have perased the letters patent of January 16, in the t^ent.eth year of the reign of King Tharles he the offi ' T\' ''' "^' ""^"^ ^^^*"^* '^ ^«»>-t Ayleway he office and place of Auditor-General of Virginia; for h^ and that he may execute the place by deputy, withou personal attendance, provided hi.s deputy be sufficient. Geo. Trebv. (2.) Mr. Lanihs opinion on tlw appointnmit of SIuriiTa m Aew Jerftey. •*' J'o the Eight Ho,,., the Lords Con,mi,m„„cr» for Trad. iiud Plonlationn. Hiy Ijordn : I.. ob«li«,co t., y„,u. Lord»ln,,»' oonunand,- ,i.-„med tome by Mr.Hiir, k-l.er of the 18lh of Julv Ia.t1 have reco„,idered „n-Actp„«d ,„ New Jersey, h, Jan,,. fl- u th,. C„U,„.v „f N,„ ,,er„ey.l„gi., ,eeuri.,, -.M take the oath, or alllrn.ati,.,, .herein direete,!, for the J„e .l.>oh„rge of ,_l.eir ofliee,, and to p,.,ve„t their „«, long continmiMcc therein. " ^ I fiiHi in n,y report n.ade to your Lord«lxip« the :i3d 162 OPINIONS OF EMINENT LAWYERS. I of January last, that I made no ohjectron to this Act in point of law, as it appeared to me that Acta of the like nature, in r^^^ard to sherifts, lioA^e passed in some of the neighboring Provinces, which have been confirmed here, and it is upon the plan of those Acts, that this Act seems to ha\'e been framed. As for the reasons of this Act beinj; passed within this Province, the Governor, who gave his assent there- to 1 suppose has informed your Lordships, pursuant to his instructions, and it seems very proper he should have done so, as, by this Act, the limiting the time of the continuance of a sheriff in his oftice, is, in some re- spect, restraining the power he derives from the Crown of appointing sheriHs, which, before tbi.^ Act pa.ssed, was without limitation, r.nd .so was the power of the Crown in England, formerly ; but by several Acts that have been pa.s.sed here, the Legislature hive liinited the time of a sheriff serving in his office : Therefore, it ap- pears to nie, that as some of the neighI>oring '^'rovinces have found r< a.son to pa.ss Acts of this nature, whic'- are now subsisting, and as the liCgislature here have also foi:nd reason heretofore to pass A( ts limiting the time of a sheriff's continuiim e in his office, that there mav have been rv 'Us to induce the Legislature of this Province to do the same; all which must he suljmitted to vour Lordships, and from the information \ou have rc'eived how far you think proper to reconunend the confirming of this Act. Mat. Ijamb. Lincoln's Inn, Sept. 30. 1741). a 1^ THE king's prerogative ABROAD. 1G3 _ (3.) Jfr Fanes opinion on the Khu/a pow^r to con. pm. the fiths to land in Connecting To the Right Hon, the Lords Commissioners for Trade and Plantations. My Lords ; In obedience to yonr Lordships' commands, signified ^ mo y Mr. PoppU>'s letter transndttin, to n.e copies ol the Charter ot Connecticut, and the petition of the ^oi^s of that Colony ; and al.,, the nu.norial o^ Mr >Mnthorp; and desirin;,^ my opini(,n, whether Hi. M-i' josty can, hy virtue of his prero,,ative, an.l without .he assistar.ce of Parliament, gratifv the said Colony i„ their request ? I have considere 1 of the san.e, and he. 'eave to observe to your Lordshi, s. that I .annot prettmd to Hay whether the Kin. by v. tue of his prerogative can < o w,.,t ,s desired by the pet it ioners. But I umst submrt 't io your Lordships' consid, n-Hon, supposing the King had a power, by his prerogative, of gratifvin. the re quest of th.s(Jolony, whether, under the eiVeumstanees "t this ea.e, ,t wouM not be more for- His Maje.tv's ser vice, to tnke the assistance of Parliament, as that meth- od wdl be the least liable to objc ction. as well as the most certain and efi;.tual manne. of gratifying the request ot tJie petitioners. V 1 >>. , Yr.k's. Fane, November 24, 1730, Hi II itiii > ¥ li 164 OPINIONS OP EMINENT LAWYERS. (4.) Th^ opinmi of (lie AttorMy and SoUcitor-Oene- ral, Ryder and Murray, on- the King's right to make new grants of land in New Hampshire. [New Hampshire. — State of tiic case with respect to certain townships and tracts of land granted by the governments of the Massachusetts Bay and Con- necticut, in New England, which townships and tracts of land are now part of the Province of New Hamp- shire, by the determinination of the boundary line between that Province and tlie Province of the Massa- chusetts Bay, in the year 1738.] Disputes having lor a long time subsisted between the Provinces of the Massachusetts Bay and New Hamp- shire, with respect to their boundaries, in 1733 a peti- tion was presented on behalf of the Province of New Hampshire, jjrnying that (Commissioners might be ap- pointed to ascertain the boundaries. Upon hearings of both parties l)efore the Attorney and Sdlicitor-CJenerrl, the Board of Trade and the Coun- cil, His Majesty was pleased, J)y his order in Council of the 9th of February. 173(1, to direct that a couunisHion phouid be i)rep.ire.l and pn--< under the (neat Seal, Au- thorizing C()mini.-«sioners t.) mark out the cli\iding line between the Provinces oi' the Mas.> T to pass any grant of lands, without enjoining 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 :iav y. There are, also, about sixty thousand acres of land situated on the west side of Connecticut River, Avhich were purchased by private persons from the government of Connecticut, to whom that land had been laid out by the government of the Massachusetts Bay, as an equivalent for tw^o or three townships whidi the Mas- sachusetts Bay purchased from Connecticut govern- ment. This tract of land, by the determination of the boundary line in 1/38, is become a part of Now Hamp- shire, but the proprietors of it are subject to no condi- tions of improvement, and the land lies waste and uncul- tivated. Question.— Whether the Crown can resume the lands granted by the Province of the Massachusetts Bay, un- der condition of cultivation, those lands being now be- come 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 t.ieir grants ? and if the Crown can, what is the most advisable and regu- lar method of making such resuinpticm ? Whether, in the case of the lands granted away by the Province of the Massachusetts Bay, to particular persoi.s, without any condition of cultivation, the Crown can now enforce the proprietors of such Lnd. u) cultivate them, or oblige them to take these lands uikKt new grants, upon the said lai.ds being made a part of the Province of New Hampshire, by the determination of the boundary line in 1738 ? We are clearly of opinicn,the Crowa may resume the THE king's prerogative ABROAD. 167 lands granted, on condition of settling within three jearn where there has, in fact, ^^ecn no settlement. With re- gard to land.s grantetlO*JS OF EMLNGIvr r,AWVER«. The proper mamier of making sucli ivsumptitHi, alter such default, ie, bj making new grants; to such as shall be irilUng to accept them, at such leutt,. and . \m >'Yf^'; '•"• '"^^• "o.rlect. for i, doo. ant appear r<, ,ne "'Mt he lias ,eec.iv<.,i an; ov-lers ih,ni hi. principal, con- I'ennng tins aftai, : |„a .C vo,. k,..,, where to send to ^^•"^- f ••^■M yun u-oul.l -lirert fma to call ^i „„• cham- "ers. ,n onler to .unuMon Colonel Spotswood. or his iWMits. to atteu.i upon ids ...veat, and then tins matter n^^y soon be hrouj^ht h, a conclusion. Vns whv they have no( ,e.eive,l ,„„• ,,.„,,, ^,,,-^^^ ninv. !^ VOKIZK. Ivin,, and h FroprUtor, of th. Xorll.ni No'h hi 1 irroposed in the .said letter. The first ..f which .pieries is; What shall pass b\ the grant nf lolonv-^oods. in the said letters patent of King i II 170 OPINIONS OF KMI.NE.ST LAWYFRS. James the Second ; niul whetluT the ^oods of n feh de se .>seril)ed in the tyrant, do pass ; I)ut it liatli liccii dcteni'i.ied, that tho.-e words do not extend to an_\ debts or rl<;hls of ac- tion, nor to any Uvisos i\rr y^ws, or other chattels i'cal, lH'lon;,Mii,i;- t(» Mieli lelon. nor to any goods or chattels, wliatsoeNcr, of a r'< la >/( e se. Tl !e secoi 111 (|ne^tion is; \\'helher lines irn|tosed by tile Kiniis Conrt. n|,on persons resi(bn<;- within the said feriitory. loi- eontenipt or otbeiwisc. shall nt»t l>ass by tli(,' said left therebv ? ers ] ,it»'iit : and what lines pass As to tl us. \\{' arc of opinion, that no other lines pass therein. Imt >ucb as iire ini[ios(M| by Hk- Kni^i's Coiii'ls, held within the said lerritur\ ; tli Courts, let ol' the ::iaiit e lines inijioscd at the itees. ,ire expi'essly i:;raiit»Ml to tllcni by tln' letters patent .1' Kin- Charles tli(> Second; aiu' tl le hues iinjiosed |,v the Kiiii: s C,,in I-. held without tl 10 .saiil ternttu \ . cannot u acciiie Willi till' -auie The t hirl oue~l i lib pripprii'l \ , be -iiid to ari' ; or jUe-lion :- \\ b.il. -hill pa-- b\ the word Ibrleiliire-. in ihc said hllei- paleiii ' As lo this, ur are uT opinion that all ::imii1s and chat- tels, ical and jier-oiial ill pii--cv--;«iii bcin;; uilhiii tiie said terriliii" . :iiid Toileited li\ reasMH nf ;iii\ iiidi,'nient or con \ ictinii lor iiiisd iiieinni .ir rclciii\ . mil all interests in any lands l\ in.i; within the said lernlnr\, foileitcd TITR KIXCx's PREROC\TIVC ABROAD. l7l to l!;c (',„u-n l,v any i-thiiiKlcr of U.l..iiy. do pnss l.y the \yonl lorn.i (,„.,.,. |,„t ,i,j, ^^.,,,.,1 i^ so ,ir,.n,.ral ■.mdJxtcn' .^ivc, i.M.I the. cMsrs whi.-h m;.y iiris.. uiu.n it so vmHous, that it is ii„i,os.ihK. to irivt' nn opinio,, tl,»Mv„p.)„, which liny .luswn- vvny .-vcit, with.Mit h;i-. i„sr tl,.. particular I'act-^ statcil. The only .p„>stion r..„fa!,i,.,J in Majoi- I),iMlalr's h'tt. r i-*: How ,a,' the (;ov.-,-no,- nf Vi,-ii,ia ,uav cxcivIm. tho ^"'tl""ity -iv.Ml hi,.. l,y llisMai,..l,N, in ■p:.n!nni,.;^ of- '•■■"••'s an.l ,v„,ittin- lorfcidnrs, aiaHu.L:- in the No-n...,-,! Ncrh. As to uhirh. u,. a,v nf ..pi„i,,„. (hat nothiu- ,.,>„- '^"""'1 iMth,. >a:,l l-tt..,-spat..n<.,v.t:-ai„hi,uln,n,,.xcT- .•iMn,^Mhcautho,ity of .Kinlonin^ .....h oIUmuvh, an.l if thopanh,,, h.. ^Ta,,!..,! hclon. any ioilMiuiv i„..,„Tc.l hv .I'l-l-incnt. in , as-s „i niisdcncano,-, .„■ I,v lli^ht, ,,.,i- VK'tion o,- jn,|-,n..nt, in <,,s,.. ..f f,.l,,„y. ti„' M:,,.|on xvill I'lvvcnt any fo,-r,.ilM,v ; hut if (he panlm Ye .,,,,,(,..1 iil'tcT th.. ioi-H.i(,n-,. ar:,,alh ii,ru,i r,|. I,v an\ "or the ■"•■aiH alo.-esai.l. th.M..:, tlun|H.„ee nil! U- th.',vh\ ,1 c-ha,-j;e,l, (h. ,i:.;,, .,1' (he ^n.ntee. (o (he (hin^js li.r feid-d will eon(iiiiie. P. ^ OUKK. C. T M.IIOT 4 IS- Aii^u-( IL'. \-j2'i (7) ///, npinionof the Att„n>,ii a„.l S,.r,r,lnr. //,/. V /• ,n,.i Str.n,.,. . •nnrry^in., lh, .jrant-s of (amh ,n ( \,m. Inn,. /.Jon ami uJUr tin ,on-rln,.s, . I.„ ,h, f^;,,, ,„■ ^/,, l'ritjtriiti>rH^ ri'ihti. ''"'"' '■'•■ ^Vli<'tl"-.:.in onh,.,.af.,,ts::,-,H(e,i alter Mien- |.onUhi|w h,„i nn|.M-.! !!,• !an.l-ol!i, .> (., !„. shut "''■ '^"' '" •''■"""•' ^■•'li'l. "thn- ihan ,-ueh a. were ,L,rUUte(| hy o,(!e|- in I,(iMdoii ) \ \ ■ i •-: ! H II * •f ' 172 OPIMo\!S OF EMIM:nt r.AWVE KS. c- ;iie ul opiiiir.n, (h:,( siu-li patents, iimy |,o cr,„),i notwithstaiuliiig tliMt ur.l.T to shut up tlio 1 ii' tlic Loids ProiM'iot aml-ofli ft', thos" o-i-iiiitv, or aftor tl ]M-iot..is were ("itlic-]- mad* pi ivy U vy wfi-o made, received ll •sidL'i-atioii (or tl fiippoj'tfd. -t^! — A\'liotiui' such pati'iit.- ingV: ])iuvhasc>. l,y (he Lor<)< Proprietors- G 10 COll- K before th leiu: otherwise m c think thcv cannot be as were jiniiitod ai\er the ticul, e new (Joveinor arrived Ironi the ( ii'l; sucli as appears to Jiave I • overnor, lown, par- Socretaii^ •' !'uoks. after ad •een entered in the of tlie Ki \ ICC rccci\-ed in the Provi A^ n,i;s purchase, are to he (Kenied o„,„l ? lieu e aiH oi o])inioii, that moi Jii the second (.-....'re can 1k' deen.ed "ood ic oi the patents mentioned od.— AMietli the Crown's purchase* fi ;!>• (he \(i ,,f I'arliainent mad e nj>oii clan-e in it. (hat tak( "111 tiie Lords I'roprietors, that it wa'^ lor (pnttini: possessions of p-ants. notice ..f such .mlv. as bore d.ite beli.re 1727. If iiulit not ( " ''c \(M(le(|. luit II- t for -lei 1 a villi: (Ik "•'■11 iire-;iilarl\ made, they " Mi. h as wi-re gi anted if the ( peiise 7 e\pen eui nriuiii;: the boundary line low I, ,1, Mich ca«v ,,u,ulii not to bear tl le e\- \\v think it (o in tl "■"per to ..bMTvc (li:it the c|auM« referred ing date, but I 11^ .,n,MMv. dn,.. uot put ,1 upon the patiuts lu-ar- '111;,; actuall\ made I •elurc 1st .lanuarx n--; ami eouMdennir the extraoniinarv ciicumst altendin.u- these ,urants, and that the Crown had tiee of them, at the time n\' tl ances no no- I'ea-ou lor le piiicji;!,,'. (he-e i.i ^iieat " ^"" ' "'".^ "If" 'b.' vah.',:v (!u'reoi;aml lUK) timt lo avoid (l.vm loi such UK :;ulariliL% iJuL u.^ l! THE KINU s PRKKOGATI VK ABROAD. wero granted for del line. 173 IVT* think it such i)nrcl seem .() .stand i i ;i mncl •ing the expense of tlie bonnd irv reas.mahle .,>■„,. indulgvnc.' shoidd be .she ?ha i)nrclii)seis. l)v i-^ !i more fuvorahle lii-ht we wn to chasi" wliat the.v or tl vated fi ? tion nioiie\ for the rest Ki"-»iirnire d rawii uj) and ries" oHicv lor some \ ,i;«>()d ; if their not I. ol' fraud .' not refrist.'red in the Secreti ears afterwards, shall ho d 'iu.ir registered, i not m e\ eemed idenee Wo are of ..pinion, that in general, were exemted with such blank use. thnno-l, jill^.,] xucli patents as s a,'^ arc mentioned in the up alterward^. an have been atlcn.lcd with a I V(»id ; but if ;hev nil; iiined I'laudiik-nfly or iin-ii'-rl g posses.sion. iuid not i.b- \^«' •hiiik thev ought to Ih. i„ the Jie cii'cumstance of not f in aii\- other respect, •w support. !; and as to iflice 1 K'ing registered i„ the Secret: Ol- some years afterwards, it not I Ik'W far hi- within ^vhnt time to the \alidit\ nl' sncl •t'iug tated sucb rc'gisti-, is 1 lece.ssarv ueizlected. • grants, nor for bow huitr it we cannot form aiiv iiid. was that will li.iv e II -.11. - w poll tl c patents. uicnt. what inlhienee lu'Hier -iieh patent,, out an\ deseription of the bound l»y reguh.r surveys, ivtiiriied nito tl„. S 1 ■ v.-ere gixcn oiit w it! line J.i'O fo be (I cciiied \,ilit ind not prece.j.-d Secretaries olIi( ,. W '•>ie of opinion, that th or tla- iioiindar ol itsi-li; snliicient circiiiiHtaiiees w er» sue I li grants, and of piecediiii. to d e.-trov e I knowi even in that e w iiut (.1 .1 deseription of reirnlar siirxcxs. "Udi piitents, mile: 1^ not. 'S .-.uch 1 re.piisitcs, nece-ssar',- to ' eu..««.. if tl i^ pioprietora 1 1* m I 174 opmioNs OP sMiNEivr laWyehs. have had the consideration, and the lands have been on- joyed accnrdingl/, without fraud, we think such grants ought to ije deemed valid. 6th,— Whether those grants issued by virtue of war- rants that had Iain hy many years, are to l)e deemed good, notwithstanding the grants assigned tliem were taken out irrrgularly, and particularlv those after 1727 ? We are of opinion, that tha circumstance of there having Ixvn warrants many years before the giants issued, is not, of itself, sulTicicnt to support grants that would, otherwise, be irregular and void ; though upon the general question of fraud, that cirrnmstance may, pro})ably, be of some service to the grantees, according to the particular circumstances of each case, whether sucli gnint.s issued before or niter the year 1727. 7th,— Ah it is all'.'ged by the Governor, that many of the people th:.t hold lands l)y virtue of the patents, formerly granted under the Lords Proprietors, possess much greater (piantities than tliey ought to hold, by the words of the said grants, has pit the C,-.>wn power to re-.Mirvey .such lands / and, in ca.se any fraud should appear, what steps nuist the Cnnvn t^ike to recover ita right 1 We are of opinion, that whoevci po^ ,>ss(>s a much greater rpinntity than they ought to hol rc-siiiv cvid dii lu'lntlt of 'he Crown. But, as to grants made before 1727. up(»ii mvcvsac- lualiy mmle. wc apprehend (if they were otherwise go<»d in law.) they are excepted by the Art 2 (Jeo. 2., "Ut of the sale to the Crown, and, therefore, not liable U) he mvf rpple, i,rorming v;s that vour I<>r.lsh.ps, baving had u.ul.,- considonition soveral pa- pers relating f , the settlement of Carolina, and ob^elv. ing that .on.,., grants were made by the late Lorjs I'n,. pnetors, of large tract, of land, without any limitation tl.orem a. to the phu-e where or time whim the .aid !ai.. .,s to be taken up and seated; and transmitting t<, u« ilMi encAu^^d cupy of a ^^i of thiU kiud. maJi: to 176, OPINIONS OF EMINENT LAWYERS. M 'i J Sir Nathnnic'l Jolinsoji. in 1G8G, which hath never yet heon put in oxocntioii. together witli the enclosed copy of the original grant, from the (y'rown to tlie Lords Pro- prietors of Carolina, tor our further information ; and desiring us to con-iidor the same, and report our opiiii(m, in point of law. whether such grants are legal and of force. We have considered the patent, wherehv the said Lords Pro[)ri('tors did grant to Sir Nathaniel John- son, the liono'- and dignity of a ('((s-sitytn-. nnn your Lordsliijis; In nhcdionce to your Lordslii|)-' , otnmand-. signified to me iiy Mr. I ()p]tlc, (h'siii.ig niy opinion, in point of liiw, whctlicr the townslii|is of Purryshonuigh.inCarolini', lu'ing, |Mirsu;iut ti- His >hijest\'s instructions, set out for til.' u>;c ot ,'(" tain people; and His Majesty having declar- ed flint ;ill til. land within six mih's (hereof shall not he taken i.p 'ly aii\- jierson claiming a riirht under old grants which ' i\'e not In-en taken up. shall not l>e THE king's prerogative ABROAD. 177 deemed such an effectual taking up of the said land, for His Majesty's use, as to invalidate the claim of any per- son who shall, subsequent to th. said instructions and proclamation, take up land there. And, I humbly certi- y to your Lordships, that I think the grantees of the at^ Lords Proprietors^ under tlie general power granted to them, of taking such .juantities ofland in such places as they shall think fit, since they neglected to do it pre- vious to His Majesty's instructions and declaration sha 1 not now be permitted to pitch upon lands already set- tied; but must have the effect and operation of "their grants upon lands now unsettled. July 23, 1734. ^^''"''- ^*''=- The grant being general of 12,000 acres of land, and the same being not described therein, nor ascertained bv any survey, before the proclamation of Governor John- son, we are of opinion, that such grantee cannot now take up lands, within six miles of Purrvsborough For the right of the Lords Pr<.,,rietors is now vested in the Crown, and such general grnr.t could certainly not have prevent*.,! the Lords Proprietors from making subse- quent grants of any particular lands, provided there was .still suflKMcnt land left t<. .satisly such precedent grant • and yet this would be the necessary consequence, if such general gra/itee nught, at ;uiy time before his lands are 1ft out, take then, wherever he pleases, an.l disturb the posse,ss.,m of any subse.p.ent grante,-. This would not only be i great i.nn.si... of His Majesty s right, but would .•reate very great confusion, and w .uld tend very much t^> the disturbance ol" the peace of the country. J ^^ ii.i.Es. August llith, IT.it f). IIVDKR. m _: i 178 OPINIONS OF EMINENT LAWYERS. (10.) 77i£ opinion of the mtne lawyers, on tU nuUity of a similar grant to Mr. Hodgson. To the Right Honorable the Lords Commis&ioners of Trade and Plantations. May it please your Lordships ; In obedience to your Lordships' commands, signified to us by Mr. Popple, we have considered the letters pa- tent (a copy of which you was pleased to send us) from the late Lords Proprietors of Carolina, in 1715, to Wil- liam Hodgson, Esq., and we are of opinion, that the words are too general to pass lands, and that Mr. Hodg- son hath no right to any land in Carolina, by virtue of the said patent. J. WiLLES. November 24th, 1735. D. Ryder. (11.) 7 he opinion of Mr. Fane, on the validity of tlie grant of the Secretary's office in South Carolina. To the Right Hon Table, the Lords Commissioners for Trade and Plantations. May it please your Loi-dships ; In obedience to your Lordships^ connnands signified to me by Mr. Hill, I have considered the case of Mr. Hammerton, relating to his claim of the office of Regis- trar of the Province of South Carolina, and I beg leave to say, that I think he \> well entitled to it, bv virtue of hi.^ grant from tbe Crown ; and, notwitli.Ktan.ling there does not appear to beany conuuission of Kegi^;trar grant- ed by the Lords Proprietors til! tbe \,.ar 17(10. y,i\.^ rh the \ct.- of 1694 and lODS have dire.-ted what is to' be done by such an officer. I ihink it i^ very probable ti;,it buch an oflicer was appointed l)efore, or at the time those THE king's prerogative ABROAD. 179 Acfa were passed. I think, therefore, it appears to be nn ancient office, and held and exercised bv the Secreta- nf itoT^ *i'L^"''^' Proprietors' time ; and by the Act. of 694 and 1698, it was his duty to register all patents and grants for lands, sales, conveyances and mortgages o. land, and all other writings that were required to be registered. By the grant of the Lords Proprietors to Mr. Bertie m 1720, he ,s empowered to do and perform, not only the particular matters and things therein mentioned, but also all other act« usually done by the former Secretaries The present grant to Mr. Hainmerton pursues the very words ofMr. Bertie's grant, as to the description of the olhce, and empowers the grantc.., not only to do and per- form the several matters and things therein particularly specified, but ..Iso all (.ther acts usually dona by the for- mer Secret^iries ; and it appears, by the pa{>ers referred to me, that the whole business of Registrar and Secre- tary, was exercised by.the Secretary without any molest, atjon, irom 1700 till Mr. Johnson was appointed in 1<3.]. Tins being the case, I think Mr. Hammert.m •s entitled to hold and enjoy hi« grant, in as full an extent as any of his predecessors have done, in th^ time of the Lords Proprietors. Fh.\n. Fane. June 8th, 1739. (12.) 77u opinion o/f/w .Uforney-Geneml WiUc9, on th,:^ ri.jht ofihe Proprietor of ^far,jhHordsliips' order, of the 2'")th day of .luly last, leferring to us a petition of seve- ral merchants and traders lo the town ami garrison of (iihraltar. for t'stahlishing a (yourt of ('i\ il Judieature th(M'e. and commanding U'- to consider fhen'oi", and to prepare a cira't. or ]iroper h<'ads, f(,r the forming a scheme iltr estaldi-liing the same, and to present the same to yoin- liordsliips for your consideration, we have considered the said petition, which set.>< forth that the petitioners, concerned in trade, are greath prejudiced aliH-ady, and dl--c .rau'cil to continue the s.imc. for the want oi',1 luiui oi('i\il ( io\ errnuent <>stal>lishcd there, (it Iteiug at present im(K'r that of;i mditarv one. ) w herehy the petitioni-r- ire not secure iii their properties; that His M.ijesty had lieen ])leased to i:iant his roval letters patent I'or th.it pnrimse . it is yet. notwitlistanding. in tin- hands of milita r\ maLn--tra(es. That the -etthnir a ("i\ il Judicature tl M're would con- tri'iiite \ ti\ nun h tut lie advant; :e ol' Ir'ade in general and t>i the entire s.it isfaeiion of all His Majesty s tra- dinjj suhjeets, a< \V( II ,is to the i^i-eat ,i(|vanhige of Hi.s Majesty's reveuue> , the petitioners^ therefore. luiinMy prayed, tliat His Majt-sty woidd direct that a (.'Ivil .In- THE ItlNo's rREROCATUK ABnOAD. JgS '7 t- ■-.""»<.•,! ,„ ,„ ,■,,„,, lK.n,.o, ,„„, LZJZ Am „,. |,„ ,,,, ,„,.,, ^. ,^,_. ,^^ ^^^^^^ he ,, .r..„,. „ l„«. „,„„,, „,,, ,„|,.,,ii„„| ,„ „,^. nn„|i,.„,i,„ , ■ ' "■"'■'■•Iv.... ,„■ ,|„,r aR,.„l,. ,„„,le :;:; tt' ;;:■"■' ■-" .' •^'.- "ii .a :; t-H. , ...... „, „„. „„.„„„.,, ,„. ,,„,,.^^;, ■; >. . '-...I..... ..,...„ >vl,i..,, a„o,„l,„„.,. „,. ,.„ „ ; :!'";"""■ •"•■'"-'■"- p.-... .......li.i..,, aTd ""'''""•I"-'"": -!.".■ i.i i,.,wo „; :","';;';' ■^•■'MAu,,v,M,,,„„ir,,.v.„,„i,w„,i„.,: ;':^, "''">"■"■"'"■■■■■•■ "■■■■•■•"<■ .-. wi,.„ i, w„» ^" -^".» III.' .-..in. Ill „l |.„,, ,„ I, ' ' ,.i,.,,„.l , , "■> "I i'.iii"|ia, liHir 'lla|.c'l>, ami ,.,„. .| , | |;,,„j|j,., . ■'!'""; ''■■""'"•""■"■■'"'"""^-..■.I.li-li.'.l III,.,-,. ,„ :','■■""• "" "'"■' ■'■'•■'. ■ ■■ - , :;:.":;;' ■"•■"' -> ■".. .,..„. ,.,.,, „„„„,. ,,,-^ ■'""■'■'■ ,:*';''■'■ '"•-........<■ ..Il, ... 1.0 a„„i,a|K. "■'■'■""• "' ""■'-■•" ■•'.....■.I: ..v„ I „■, ,„,,• ' ^' ;','"■ -^ '•I......l-rlai„; a Ti,.|,.iii,,. ,„, „„. Ul...,; , a .M,i-,„, M..,,..,, t„ U.-„l.iK„m.J I,, ,li, u,,,. «U 'hs ! f ' 186 OPINIONS OF EMINENT LAWYERS. ^ and Aldermen, to muster the militia and the gai i ison, whenever the garrison is mustered, and to si<]jn the mus- ter-rolls with tl) • ^[ajor ; the i.ulina to guard the two towers next tlie land, to prevent the soldiers deseiting ; a house to he settled tor the town hall, where the records shall be kept, and the Courts of Justice act, and the ma- gistrates assemhle; a house to he settled lor the Governor no Consuls of anv and oiticers ol' the garrison ; the ])rivate sentinels to have |)ro)K'r barracks assigned them nation, or Jews, to reside there. The sul)stai,ce of the latter ]taper is, that at least two hundn-il of His Majesty's subjects, inhabiting in (iibral- tar. dler for want of m Couit of Civil* Judicature being established then-, bi'ing more ill treated than strangers. That the winit of a ('um Court not only afl'ects His Majesty's subjects iidial)iiing there, but mU nicrchiints in genend. trading Irom Creat Biitiiin ;\ud Ireland up the Mediterranean, y:rea( inMrd)ers of whom would build hriuses, cellars i^c , upon the ruins wh.'ic tin ri' is ,s|,... > enough, so tiiat there would be a spueiniis towii,.md well irhabiic'l by His Maj*'sty's subjects, iftlie iudidgence of '' His .Mil jest' ' grneious a Civil ('nint was i:rauteil, ( )ei nnssioi' fur tlieir l)Uii(liu tl UTC That the S|iauiiiid wlm iuhi.'iif there, bine ii Spanish onsul anil a iiauisli l,(\v \ n , Willi ilernle ;ul i ill ei'euces ttint arise between llieiii 'riiiit the Kreucli wlm ilwell there. ;ir" governed iifter the Hninc nianuei as the Spaniards wlm p;iy liirge rents tl) the Ciii\enmr, uhmiI Ii1\ , for tl. eir mU' e w lueli. "re to- il" .•ipplieil. wiMild conlnliiiti' lu a i^riMt iih Winds the siibsisteiici' (>{' His ^iJ|j^>^4tv's I'orceft in ibit gari iHon. THE KING'S PREROO VE ABROAD. 187 ^ That the Genoscse who live there, have, likewise, a Oonsul and a hiwver of their own nation, to decide their disputes. ^ Tlmt the. Dutcli who are there, have, also, a Dutch -on.sul, c-cc, who determine their difterenccs. And we he- h.ave to take notice to your Lordships, that the Lor. Is (J.Mnn.issioners of Trade and Plantations' •" nh,MH'n,v to an oider of the Lords Ju.stices in Coun- ••■'• '■•.i,.rnnirto.|„Mu the l>etition of the sai.. Mr Wil- ''^'■" HaNk.s an.l otlu-is. prayi,,.; that a Court of Justice m:.y he cnvtcl .U Gihraltar. lor .U-cidiu^ disputes he- tueeu .uerchauts and traders, hy their report of the 2d -I Au,i:ust, 1720, rcpresentcl to ti.eir E.vcellencies, that they conceive,! (Jourts a^ (lil.raltar. erected after the ";""'"■'■ P'-''<'ti'-^''l accordi,,^. to tl,.. ('o,uu.o„ Law in Great Britain, or in imitati,,,, fhenM.f, ,„• such as are eatahlisla-d in His Majesty s colonies al.road, would he vc:y .hl.itory ai, I expensive, and, consequentlv, not well '•'.'"IX-I to the d....ision of tra„sit..r^ and mercantile disputes m a fre.. port, where there are hut few inhahit- ••""^^' tlu'.vlore, llu.y proposed to their Kxcellencie^ that a more sMiumnry .Iudi.-:,tory should he estahlished ''\ ^'' •''^•"■- '""' ■"'•"utted ,o ,h,.i,. Kx<.elleucieH -'"•<•- '!"■ .hai...-Advoe.te o| the ;:ams<,u. lor the "M.e hMM.MMi^d.t not l.e authorized, upon anv dispute ''-""-;rl.> arise .here, to ..;,|| ,o h,s a-Mo„s i,s xn hos,. „lv „v he shoul.i ''''*'"'" '"■'^^'■••"""■'^^"i'a.nesrouN.ndiM.r Irou, uhi-h •""'-"""' "" "ir-' .1.: l--totheGover ■; aud in "■aseofa considerahlc value. ; .h.r app...,! i,.,,, the |-v..n<,rs decision, to ir:. Maj.X.^ n. ( ouueil, as the la-t re.sort. That their Excelleucics, the Lord. JuMucs. hav^n^ , I , 'jE i 188 OPINIONS OP EMINE^T LAWYERS, I ? I ft ll 1: approved the report of the said Lords Commissioners of Trade and Plantations, by their order in Council of the 11th of August, 1720, A-ere pleased to order, that we should, forthwith, pi-epare a draft of such powers as might be titting for His Majesty to grant upon the said occasion ; together with proper regulations to be observed in tlie execution of the said new Judicature at Gibraltar, and to report the wime 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 e'/eoting a Court of Judicature in Gibraltar, which, being laid before their ExcellcMicies, they were pleased to approve the same, alter scmie few alterations made therein ; after which a connnission pas.sed the Great Seal, directing and empowering the .'udge- Advocate, ^or time being, togotlur with tw ) merchants within the said town of Gil>raltar, to Ik? appointed, from time to time, by the Judge- Advocate, and any two of them (whereof the Judge-Adv.H'ate to be one.) to be a Court, to which Court full power and authority is given, to hold plea t»l, and to hear and determine, m a summary way, all pleas of (lol)t. icoount or other contracts, tres. passes, :i lid all manner of other perwmal pleas whatso- ever, bi'tween any person or perwons whatwiH'ver. residing or U'ing within I lie said town or precincts, or territonofl thereof, and to give jiMJgiuent and sentence according to justict )uid riirht : and the method of pro<'««iHling aiid manner of execution is thereby prescrih-d. as, b" the said commission, an entry whereof is made in the Council btM'ks, to which we beg leave to re'Vr. will appciir. XUi* uoiii. .on, [Mu^vd ju that iii;i-int;r and ujhju r of Ix^jng l„«t ; and for that renson the Judge-Adv<.cate having boon proposod by the r>o,-d« Commissioners for Trade and Pi..ntHtions, and being lou.id to b.. the most proper p.M-...>n then rea.Iv upon the pia<-e, th.. commission passed in that ...annor- but ve are humbly of opini,,,,. that in .xo a .tan.ling Judica- ture be eivrtcl, to bave ti,„.,.n,-o i„ the s,,id town and temtory. it nuv be |.n.per tb.t persons should b. oxpressL named Ju.lges in the ve^ connnission who may bev.>ore particularly qualiticd for the administration o' civil justice. Wo bog leave to observe to vour Lordsbin.. tha!_ i ■ 190 OPmiONS OF EMINENT LAWYERS. though the petition conchidcs with a ])ravor onlv for the establishing a Court of Civil Judicature and appointing of Judges, yet it sets forth that the petitioners are greatly prejudiced in their trade, for want of a form of Civil Government, and, upt)n this head, we cannot but take notice to your Lordships, that it has lieen repre- sented to us, that the i)lace is at present wholly desti- tute of any Civil Gcnernnient, and that the property of the lands and hous.'s has never been settled since the conquest thereof, in the time of the late Queen, but re- mains precarious. Upon this in format ion. we have made tlic licst inquiry we could, whether, by the articles of surrender, or any treaties, declarations, or other pui)lic acts, ratified by the Crown of Great Britain, any legal ])rovision has been n.ade, or rules given for that purpose, and have been able to fii.,i none : and, therefore, we are 1 'unbly of opinion, that ;i,: a liiiida'uenta., ne<'e ^ary to an v form of civil government, without which Courts of Judica- ture will be in a maimer nsclc-s. and lor liie ipiieting of the inhabita.itx in their possessions, some settlement ought to )k" made of the ])iopoity in the lit)UM-sand land.s within tiiis town and territories. It has aUo lioeu represented to us, tliut no laws have been given in \\\\> place lor (ixiiig the nature of c'-imes, and the piniish;,,ent ^ t i \^r inllicted on olleii(h'r but that the same are, at i .i-eiil. |Mii;idie(i l.\ martial law, or, at least, in a way of mliiiu , .li-ci|.ii!n . This we appi'eheiid to ' c ;; lii.'l.,! w hiih ie|U!res a remedy; and tiiat laws >liould be u'ivcn for thi^ juu'i) i .«, and powers to civil magi Irates t [lut them in e.vecu- tion, in some fixed f'ourt ^A' .lu-iiie In order to enable oui selves the better to lay before /HE king's prrrogative abroad. 191 your Lordships, hearis of a sclieme, pursuant to vou: Lordf^hips' order, we thought it not improper U) inlorm ourselves of what had been done upon tut- first settle- ment of Tangier, m the time of King Charles the Second, and of His Majesty's colonies and plantations in the West Indies: and i\-y that purpose, ne perused a copy of letters patent passed f( - Tangier, and also have caused to be laid before us copies of ll,e corami-ssions which were grantt^l for the islands of Jama ca and the Canbbee Islands, upon settlement thereof, which are hereunto annexed. As fo Tangier, the method thou taken was thus, viz : By letters patent, uatcd the 2Uth of April, 1668, the town was declared to be a free cicy, all the inhabit^inta (being Christians,) were incorporated by the name of Mayor, Aldermen and Commonalty, with a Recorder and twelve Common Coumilmen; out of the Mayor, Recorder and Aldermen was constituted a Court of Rcconl for determining (•i^il ,.a„.ses. and a Court of Oyv: ..lid Terminer fur criminal mat- -rs, with a general jurisdiction, (except as to persons i„ actual pay in the garrison.) Besides which, a particuhir Court was erected f'T mercantih- causers ; and all [.roeeedings were directed <"'•<• ncrording to the laws of England, as near as the <'oudMum of th.. place and safety .,f the inhabitants would permit. Tb. (irst <'u,muis,.i..n for the ^..vcnimeut of Jamaica, issued sJMc,. tbr irstrictiou. b.-ars .laf llu .J, February^ iSth Car. II. lU that flu- Covenu.r is directe.t to take' ^"' '■'"' " ''•"""■il "I tuclvr uf the iuhi'itants, and ( niongst other things,) power giveu t<. ,, by the a.l- f ■^' 192 OPINIONS OF EMINENT LAWYERS. t ,-»-' 'i Vil If II I vice of five or more of such Council, to erect such and so many Civil Judicatures, with authority to administer oaths, as should he held necessar^-. The commission for the Carihhee IsL-nrl-. which has been laid before us. bears date the 3d of January, ISth Car. IT. By that commission, t\w Governor i^ to appoint a Council of twelve in each island, und a general power is given him, wi+h the advice of such Councils respect- ively, to apjjoint all forms and ways of government, magistracy and execution of ju :ice, and to erect Courts of JudicatiM-e for all causes, criminal and civil, and to institute forms of pi-oceeding ; to apix,int Judges and otlier officers, and to a.M'crtain their respective autliori- ties and fees ; provided, that all the constitutions and es- tablishments so mnde, should be transmitted to be al- lowed or disallowed by Hi.s Majesty in Council. A Gen- eral Assembly is appointed, to consist of members to be cho.^ei! by eacdi township, who are to make lawn with the assent of the Ciovernor. But power is given to the Governor, with the advice of the lespective Councils, to make laws an cniei-gent occasions, without any As.sem- bly, provided they should be as near the laws of Eug- Lmd as the nature and constitution of thecountiv ivould admit, .od did not .jiarge or take away the right A' nny pevsoiis in their ficeliMld, ^r,„Kis and chattels. Power is also gi\cn to (he (lovcrnor, to grant j.arcels of land, na- rlantcd. to |i|,iiitrrs. under certain terms and I'eserva- tions, and a registei' to be kept for all cmvty ar.,-es ; be- sides whi - mg the titles of others, by some general declaration/in such manner us shall be thougbt proper Wo U.g leav> ;o lay the..- matters betbrc your Lord- ships lor your consideration becau.se we find iho r.citais "* the petaion lead H.ereto, and some of -hem may be >.oeessa,y to receive a UHennin-ion I>cH.,v anv (^.urt •o rm OPINIONS OF EMINENT LAWYEHS. 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 burnbly of opinion, that if proper persons are expressly nomiiiated Judges by His Majesty, in the commission itself (as is above mentioned), the present form may, in the other parts thereof, not be improper. RoBT. Raymond. December, 14, 1722. Pur,. Yorke. (2.) 77ie opinion of the Atfovneij-Gcnerdl Northcy, that iJie Queen migld esf(d>Iis-h(i Court of K([nit[i in Mai^- sacMtseti-'i' Baij. [Extract from the Charter of Massachusetts Bay, and Mr. Attorney-General's report upon a clause in the Charti'r of the Massachusetts Bay, relating to the et,- tablishing of Courts.] " And we do of our further grace, certain knowledge, and mere motion, grant, establish and ordain, for us. our heirs, and successors, that the great and (ieneral Court or Assembly of our said Province or territory, for the time being, convened as ini re.siid, shall U>''ever have full power and authority to erect and constitute .Tudica- tories, an/'/• "" /<.v// i/it/ ii ( iiir, rinfii ill ill ( I 'III AV, T'llil. ilj ij v riiilit ill' (\Uil>- Oll th. ■sii n; mil /• of ihr 7 ni-sf, , \. (f "•I To thr llight lloiionibli' the I.o'd- ( oiiniii>--'ioncrs I'or 'I'rad. d P inlati»)|)- li _\ It |i|ca-c yoiii I-oidship 1 pursiia.ic .r >nr l.ord-hips' desiiv, Higuifud lo ns vv of liic iTfiiinst.. settiii-r forth that Hiiiniftcc of Com. oil tor IMaiiliilion af- fairh, had reterreu to your Lor<|>hip- i inem,;ruil ul the in Mr Hills Irtt the Loid-^ if the ( I THB king'.' PREftOGATIVE ABROAD. ]!)!) Tru8toesli.rc.stu!.lishi„.thoColonvorGeorgia.withdirec- tK.nsto propose a .Irnft >f what y,n.r Lonlships .hould tl..nk nio.t a.lvisahlo to Im- ,1o„.. in ordn- to obviate the •l'H.cr.lt,e.s (herein su-^^^este.!. a copy of M'hieh memorial vour Lnnlsh.ps had directed to heeuclosed, for our opin- •on. ,n uh.t „,a„„er th. present n.agistrates and other -n.<<"rs. appoin.ed hy the Trustees, for the administra- ^""•-f.instieeand execution of ^.ncnnnent, can, npon '-surrender offhe Charter, he empowered to act in tjcn- respective en.pluyn.ents. till a new administration "1 K<'vnnn>ent .hall he setth.! We have taken the Nud memorial into consideration, and are of opinion, ♦l'^'<'fthe .sur.vader of the Charter, l.v the Trustee, ••'"'"•'t he postponed, and the present government therJ lu'ptnptdlanew method of adudninistering the new ^^overrn.et.an he settled. (which seem.s most advi.sahlo ) ""'l'i'"!>''>- way for auihorising the present magistrates and oih.'crs to.ontim.e in theeven-ise <,f their respe.d- ■ ve ofiices in '\n' mean tiu.e, wili h,-, li.r His Majestv to ■■^'.'^iH'aproclan.ation lor that purp..se. under the Great V:d of (;,vat Hritain. to he puhli^hed in (ieorj-ia. n. I! \ DKU. Fehr'iiirv 2-') !7V' w \i (■».) Mr. F,t),<'s nj,nni,n,ou(h, h'i i,,/., j,,.., ,■ nf v '^'•- "'" " l'^iN".-us,d,.,rd,,n A.t. pas.sed i,, NVw York, ml, tied. Am Act lor the l.v.pM.nl .-lections m in * I 200 OPINIONS OF EMINENT LAWYERS. of ropi'osoiitutiv. to serve in General Asnenibly, and for the frequent callinj^- and meeting of the Gencal As- seinbly, so ek'cted ;' which enacts, that the General Assembly of this colony shall be held once a year, at least, at New York, nnlciss the Governor, with the advice ■)f amajorit\' of the Conncil, (which is to consist ofhve.) shall, under the seal of the colony, appoint anothei place. It ;'iirther en...'ts, that in six months after the dissolu- tion or determination of every As.>end)ly, new writs are t(; oe issued, '"or electing a new Assembly, winch is to be held once a year ; and every future Assend)ly is to have continuance for three years only, to be accounted from ih 'day of their meetintr ; and there is a clause to ilftcrmiiic the present Assi'uddy on the 15th dune 1730, ui.iess the Go\-ernor, for th<' timi> being, shall diss(dve it sooner. I l)eg leave to ob, . rve to your Lordships, that I think this Act is a very high iid'ringement upon the prerogative of the frown ; Ibr it takes ;iway that undoid.led right, which the Crown ha~; .ihva\ s exen i.^ed, of (ailing and contiiuiiu.; he .\sseml)ly of the ccdonv, at .-"Uch tiuu's and as long as it was thought necessary lor tl,r public s.rvice, and. then-lore, when aw h a male- rial liiiKivatinii ,, altemptfd, ,hen> oii^lit t< <■ some Acr\ .-tion.i: .lud cogent reasons to induce w >'r Lord- ships to con-fut fo i». For my part, I ha u lieard none, and thcrci'on- am liund)ly ofopimon, th;it it ought to l)e itipi alcd. .Tulv '-'(It;. I7.",S. Fraa. r ANK. 1? \'' IV {*> ) 77.. '>j,t'it,(>/i of ('hi,j'.Ju.s(i'i Muiri.s, ill Jii'Metf, on (he Kiii(j.-i powrr of ^nt'txtf. Till' Act «»f general pardon, n nv uder our c ...dera- THE KING s PREHO(;aT!VE ABROAD, 201 tion, I think, cc.n^ist. of tuo parts ; the one is to par- d(Mi all those persons, who have heen concerned in or are guilty ol' any of the late riot, or insurrections in this 1 rovinee ; the other is. to stop and suspend all process and proceeding again.st those persons who are already indicted 1-or high treason, or such as may hereafter he accuse.1 of that crime, until and t.. the intent His Ma- jesty s pleasure may hi' known. 1 loo], upon thi.s to he a matter of very great import- ance, perhaps the gr.Mt...t that ever yet was under .e consideration of the Council of N^w Jersey, and iHM-e ore. wish that things ha.I I.e., so managed as to l>ave hrought this allidr helore us earlier in the session, that we might have Had the greater time to weigh and consider what was proper to he done ; however, i «hal deliver i.,y opin;,.,, a.d advice upon the matter in as clnir a Manner as the shortness of the time, and i al)ilities will permit. lam clearly of ..pinion (hat l.v Hi. Majestv's com- mission to His Kxcelleuey. under the (Jreat si-al of (hvat '*'■''''"'' "''^ Kxcell.Miey has fnl| i^nver and authoritv to «'vt-nd His Ah.j,.,v', ,,,,,,,,, ,,,^,^^.,^^,,.^^,^^^^^^^ tl".sethat li've l,ee„ eom.ern.Ml in the late riots and iu- Nurrect.on.s within this e.,louy ; pnuided, the crimes of "l.i.h »hey stan.l aeeused, do not aiuo.uit to hi-d. trea- -n..r murder; these I.emg th. y erinies excepted in ""''•■'""^••<'l>l..Tovai -ommi^ -uu which gives power to extend His Majesty's iik'I.v. n-f '•'""••"t'mkit.hvauvnn.ans, prudent ,vn;.yi. -l-l--.nlIisKxeelleuev.toMM. thepowe, ..given, in ""'"'^ .'.• proposed l.v the general pardon I.efore „. "II >l." I-.g.slature MOW Httuig have made provision clleetually to .treiigt hen the l.uids oi \U, Majesty's gov- 27 i ''I 202 OPINIONS OF EMINENT LAWVERS. JPlii M m eriiment, so as to enable tliem to protect the j^ersons and estates of the people ol' the ProAnnce, and to carry into execution the laws of the land. When that is done, in a manner satisfactory to the frovernnient. then, and not before, I luinilily conceive it Avill be prudent find advisable in His p]xcellency, to j^rant and extend His Majesty's fjracious mercy to the persons concerned in the said late riots, which will then, in my opinion, tend very nmch to restoring the peace ol' the Province, a^ most of the persons concerned are an ignorant pit)- ple, encouraged and set on by some artfid and designing men. As to tlie second ])art of the Act of general pardon. I must declare it as my judgment and opiniim, that, nei- ther by His Majesty's connnission, noi' liy the article of the royal instnictions now (•■>iimiimi( ated. has His ?iX- cellency any power or authority to suspend the process, or stop the proceedings iu cases of /,/\//t tini-^ott. The powers of pardoning giver by the connnission, aie full as to nil crimes iuit treason and nnirder, which being exj)r«'s8- \y reserved and excepted, no construction, in my opinion, can possibly <'xten Majeslv's pleasure cm be Iviiown. \s t.( tlu' construction now communicated, it is ccr- tuinly a very good onv, and, auioiig niauN others, slu'ws His Maj'stys great car .mkI pati'rnal alVectiou Inr these, his remote don\inions; Imr I fjiink there i'^ iinlliinL': coii- tftiiicd ill it, ihat can Ik." construed to givi' a power to do what is now proposed. THE king's prerogative ABROAD. 203 T)ie miiterial words are, "and if anjthirg ,>plcd, I cannot think the general words 111 the instruction, were intended to give a power con- tradictory U) the commission. Aiid I conceive, that as the King's instructions leceive tiieir greatest force from the commission under the (Jieat Seal, so the urantini' tlie sus]).'nsion proposed under the powers given by that instruction, will l)e doing an act. by virtue of the rovil ot)inmis,sion, which tliat v»-ry commi.ssion prohibits and excepts in express words. Having declared i!i\ sentiments, iliat His Excellency li:i- nu power. !>y bis commission or insti iictions, to gr-oit the suspension projtosed, it will \>v needle.xs to enter fir into tlie consideration of the IcgaJitx of tvingui; the hands of the ('ourt^ o'" L;iw, in -u< b cas'.s, which seenw to iiie to be stopping the ordiuMty course of the laws, ai,d exei-i-i.-iiiir little less than ii dis|ieiihiiig power, not warii.nteu b\ the Uon.stitutiou. .( 4\ "11 204 OPINIONS OF EMINENT LAWYERS. MM 4i ' If I 111 I f It How far it will be prudent and advisable, in His Ex- cellency, to grant the (suspension proposotl, if he Juid jwwer, is next i) be considered, and greatly depends npon the state and crrcunistances of the Province, Avhich is very Avell known to every «ne here present, and therelbre, need not be mentioned. But certain it is that things would never have gone tiie lengths they had done, if the Legislature had interposed when this rebellion was young, and before it had come to its matu- rity, nor need it continue longer, if they will exert them- selves, 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 advisiJ.le in the government to stretch their ])ower in favor of a few people, who have thrown olf tlicir allegiance. There is power and strength enough in the I'rovince. to put the laws in execution ; His Kxceliency, with the Council and A.ssembly, can. if tliey will, presently ])ut a stop to those disortiers, and were they once inclined, these dar- ing jieople would i)resently siicak into their hiding jtlaces, and not venture to shew tiieuiselves in o])posi- tion t«» the gov.rnni.nr Mut while we want inclina- tion, and wliilc these prnjil(. kii<>\v what we do, all the mild measures proposed will Ite incllectMal. and onlvtend to bi-iug the goNcniment into gre. ler contempt. Had these daviii;' distuilieis not been countenanced by some men of note, hail they not depended upon the Hupport and protection of men nuich above them.selves, they never would have ventured, thus, to have tlowti in the face of His Majesty's Government, and to iiave thrown olf their allegiance. Had thev labored under li THE king's prerogative ABROAD. 205 any injustiro or oppression, they have had full liberty, and have hud their coniplainta before the Assembly, tuJ many of whom want not inclinations in their favor ; a-id as they have been fully heard, and no one instiince of oppression or injustice made out, even to the satis- faction of the Assembly, it must be presumed their complaints ure only clamor, designed to draw in weak and unwary people, to join them in their unlawful prac- tices. R. H. Morris. T'-'ni I If; How far Colonists carry EnolisJi Laws. -^ •- 1^ III. How far the King's subjects, who emigrate, carry with them the Law of England : Fimt, The Common Law ; Second, The Statute Law. i^irst. As to the Common Law. (L) Ml'. WcM'' -9 opinion oti this -suhfitsct III r720. The Common Law of England, is the Conunon Law of the Plantations, and all statutes in alhrniance of the Common Law pas.sed in England, antecedent to the set- tlement of a colony, are in force in il:\t colony, unless there is some private Act to the contrary ; though no statutes made since those settlements, urc there in force, unless the cohmies are particularly mentioned. Let an Englishman go where he will, he carries as much of laAv and liberty with him, as the nature of things will bear. (2.) Ike opinion at tin AtfnriH ,,' and SnJicitor-Gen- eml, Pratt and Vorh. that tlu- h'inf/\ ■'^id,j,,fii cam/ n'ith them the Coininon Lair, irhercnr thtij med in ciuitoily, an a cluinje of riracy. To the Right Hon., the Lords Commissioners for Trade and Plantations. My U)rds ; 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 opin- ion, in point of law, how iiir Mr. Worslev, Governor of Barbadoe., can be ju.stifud in detaining two persons in custody upon that island, upon suspicion of piracy, sup- posed t^ :. committed on the Portuguese factory at Cape T opez. I have considered of the matters so' re- ferred, and am humbly <,f opinion, that Mr. Worsley can- n..t.iustifv the detaining the persons anv longer in cus- tody, upon suspicion, without l„inging them to a trial and winch, he .says in his letter f., vour Lord,.hips he' declines .ioin^. b.ranse he is apprehensive that for want of ov.dence they will 1 acquitted; therefore, I llMMk they ought to b. ,eic,,sc.,l ; but it mav b. proper lor Mr. \\ orsley, if the suspicions are verv stn.ng against tlieiu, not to disrharge them till such liinc -lus t!... bav.- M if? it ^f .' .\i^ 208 OPINIONS OF EMINENT LAWYERS. given security for their appearance, to answer any mat- ters that may hereafter, in a reasonable time, be charged upon them. Fran. Fane. July 14, 1726. /Second. As to the extension of the Statute Law. (1.) The Attoi'ney-Geiieral Yorl€''s ajyinian on thvi sulject, in 1729. Qua re. — Whether such gen jral Statutes of England as have been made since the date of the Charter of Mary- land, and wherein no mention is made of the planta- tions, 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 7 I am of opinion that such gene al Statut<^s as have been made sii: e the settlement of Maryland, and { re not, by express word.s, located either to the i)laiitations in general, or to the Province in particular, are not in force there, unless they have been introduced and de- clared to be laws, by some Acts of Assembly of the Pro- vince, or have been received there by long uninterrupted usage ur 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. P. YoRKE. By Stat. 25, Geo. JL ch. 6. s. 10, it appears, that the Legislature considered u-sa the cohmies. f8f ■ HOW FAR COLONIST* CARRV ENGLISH LAWS. 909 (2.) Ihe opiaion of the Attorney ami Solicitor, Hen- ley and Yorle, th-J. the mJject. emigrating, do cwrry toith them the Statute Law, in, 1757. My Lords ; In obedienc. to your Lordships' commands, signified to us by Mr. Pownal, by letter dated April Lst 1757 accompanied with an enclo.sed letter and paper.s 'which he had received li-om Jonathan Tolcher, Esq., Chief-Jus- tice of His Majesty's colony of Nova Scotia, relating to the case of two persons convicted in the Courts there of counterfeituig and urxring Spanish dollars and pista^ reens, and requiring our opinion, in point of law, there- on ; we have taken the said lett^^rs and papers into our con>,ideration, and find that the question upon which the case of tho..e two persons convicted of high treason de- pend«, IS this : Whetlier the Act of Parliament, 1st Mar ch. 6., en .od an Act that the counterfeiting of strange coim (being current within this realm), the Queen's sign manual or privy seal, to be adjudged treason, extends ^• Nova .scotia, and is in force there, with respect to tb .u^unterleiting Spanish dollars and pistareens in the said Province ? And we are o^<.)pinion, first, that it doth not; for that tae Act ,« expressly restrained to the counterfeiting of U)reign com, current within this realm, of which Nova Scotia is r ) part. Secondly, we are of opinicn, that tho proposition adopted by the Judges there, that the inhabiUiat. of the cohmies cu^rv with them the Statute Laws of this realm, ,s not true, :i^ a gener.al propositi ^ l,ut dopejul^ upon circumstHuces : the effect of their Chart^'r • u.sagV and acts of tiieir Legislature; and it would L both it » '■ I' 210 OPINIONS OF EMINENT LAWYERS. inconvenient and dangerous, to take it in so large an extent. And thirdly, we are of opinion, that the offence can only be con.sidered (is a high misdeireanor, unleR.«s there are any provisions in any Charter granted to that Pro- vince, which make it a greater offence, to which we are entirely strangers. May 18. 1757. R. Henley, C. YORKE. ■ ) * Ik --^* (3.) 27ie opinion of the Advocate, the Atfoi'/ietj and Solicitor, Hay, Yorhe and Norton on the same subject, in 17G2. Qmere.—TioGi^ the Xci of the 28th Hen. VIII. ch. 15., entitled ''For Pirates," (being passed before the ostablish- ment of any of the British Colonies) extend to the said colonies ; and if it does, how are the regulations there- in set down, to be executed ] Answer. — We r i of op'iion, that the stat. 28 Hen. VIII. does extend to the case of rmirder, committed any where on the high seas ; and. consequently, that a commission might issue on the present case, into any county witlun the "ealm of England, to try the offend- ers who might be brought over for that ])iupose, and the v/itnesses examined, and jury sworn before such Com- missioners, unless that mode o*' trial should be deemed inconvenient, ^2„^p;.f._Does the Act of the 11th and Pith Will. IIl.,ch. 7., entitled "An Act for the effectual suppression of Piracy," or the 7th sec. of Geo. I., ch. 11., entith^l "An Act further preventing burglary," contain sufficient authority for the trial and punishment of persons upon HOW FAR COLONISTS CARRY ENGLTSH LAWS 211 J,,,,,,.,,. We are cf „pi„i„„, ,|.„t „eitherof the Act, U> aiTect tl,. ea.,e „f ,nu„ler, ; the.,- relate merely to such n,e,asare ectua, or inferio, ^ the .pecioj ^articu Iiim expressed. ' March 4, 1762. ^^'''' Vv. lORKE. F. Norton. (i) -.^opMo,, of Ihc Attorney ami Solicitor-Oen,- gmmilhj, m dmumom of the Crotn, in 17C7. May It please your Lordships ; Ih .*«lie„ce to your Lordships' commands, signified to u; I.. Mr. PownalPs letter of the ,2tU of Junc'thafwe »"ul< take „,to our cousideration an Act of Parliament , -cdm,h..,2,hofQ„ceuAnn..s,a,.2.ch,18.,enti-' ..cu An Act lor the preserving of all such ships and 60«]s, whK-h shall happen to be forced on shore upon ho coast, of this ki„gdon,or any other of Her Majes yC 4.1 01 Ceo. I. ch. 12, e„,„led -an Ac, f ,r enforcing and "akn,.,- perpetual an Act of the 12,1, vcar o,' Her hUe Ma >-;-.-,i,lcdMuAct,,rpre.scrvinga,ls„chs '^^^ «.. ..!.., creo,. as shall happen ,„ K. fo,™Un shore or » ran, ed up.u, the coast, „f ,his king,l„u,. or a„v othcrof m-.to, death on such as shall „;!fu||_,. ,,^^ ^j _ f f \- lit im life'-! lii If ' II: 1 212 OPINIONS OF EMINENT LAWYERS. strov ships; and that we Avonld f!;ivo our opinion, whether tlie said Acts do extend to, and are in force in His Majesty's colonies and })lantations, in America ; we have taken the same into our consideration, and are of opinion, that as the title of the Act of the 12th of Ann. stnt 2. ch. 18. expressly imports to he " an Act for pre- serving ships and goods forced on sliore, or stranded up- on the coasts of this kingdom or any other of Her Majes- ty'H dominions," and tlu' enacting part has words extend- ing to Her Majc-^ty's doniinions ingiMX'ral, the .said Act of the 12th of Aim. extends lo and is in force in His Ma- jesty's colonies and plantations in America, notwith- standing the special promulgation of the law; and wme other pntvisions in it are applicahle (mly to this kingdom. We are likewise of o])ini(m, that po much of the Act of 4th Goo. I. ch 12. as declares the 12th of .\nn. to he periK-'tual, extcids to America. Hut the thinl clause of that Act, wliicli introduces ;>. lu-w crime, hy a pii)\ i.sion altogether inde|H.'n(h'ut of the former part of the A(;t, and ma not extenil to His Maje.st_\ M colonic- and [ilantjilions in America, tiuit clause Ix'ing eNpre-^scil in general terms, without any reference to the colonics; and llic I 1 tli of Cieo. I. ch. 20., s. 7., which directs the ii.odc of |)id.si;cut ion ol" those offences, when coininittcd witliin the hody of any coun- ty of this realm, or npni lli" liiij,h seas, making no Tucn- tion of llic manner «f trial, if siicli olfcnccs should Vio coramitU'd in any ol lli> .Majesty's plantatifms or colo- nien in America W. I)l (.UKV. June 2o, 17(j7. E. W illes. HOW FAR COLONISTS CARRY ENGLISH LAWS. 213 (5.) The opinion of tlu: Attorney and Solicitor-Gene- ral, haymond and Yorke, how far tJce Statute of Mo- nopoUes extends to the Colonics. To the Right Honorable, the Lords C<.,nmissioners for Trade and PkutatioiiH. In obe.Henco to your Lordships' coinnmnds signified to us hv Mr. Popple, by his letter dated the L>4th of June last, whereby he aeouaints us. tlmt His Majesty having been pleased to refer U> your Lordships the" peti- tion of Mr. Shard and others, for a patent for the sole curing ol sturgeon in America, an.l importing the same >ntoth..s kn,g,lom; and your Lord.ship.s. beins; desirous to have the ,s.i„,e effectually --arried on without being made a stoek-jobbing business, were pleas.d t<. re.p.ire our opinu.n. in what manner a pat,.„t mav be granted them. To answer what your Lordships propose, in that point, we have considered of the luatt.M- therebv referred to us, an,lnre of opini^statvdtons, we apprehend .bat tb.. art pntrn-ird to l;y the pHifoner. do.s not app,.ar to b. „ „..w inven- ""'"'"' -•■'-i.h tl... sole u.se is grantabk- ; besi.l.s ,|,.t »«'!nvv..n .I.M.btful uponconsi.ierationnftlH. Statute ;';"--'^'-i-.'-.I,..:5,H|,Hher.b..p,..n,,M,v ' tb. <'"wn. fur making grant, of ib,. uahur, eMlii^v.. of """•'• P«''--"ns. CM,. M.ls to til,. pJautaliMMM. - , Hour i; \N MOM). •Tulv IS, 1720 I, .. ■ S i t I i ; s ill i i y '4i 214 OPINIONS OF EMINEiVT LAWYERS, I y (6.) The opinion of the Attovnoj-Ocinral Yorl 1727, Imw far Statutes eH^nd to the Isk of Man. e, III 1 of that ofli opinion, that no otlicci of the Ciij^toni.s can, by virtue of any deputation from tiie Conuuissionor.s of the Customs in Groat Britain, make a seizure in the Isle of Man ; because, a.s I take it, tiieir conuiiissitm doth not extend to th''t Island ; but 1 conceive that the clause in the Act 7, Geo. 1., upon which Uiis questicm arises, gives power to any perhon, whatsoever, to seize goods inii)orted into the Isle of Man, contrary to the provision of that Act ; and that those general words are not restrained as they are in Kngland, by the operation of the Act of frauds, 14 Car. II., c. 11., s. 15, which directs seizures to be n^ade by the officers of the Customs only, for that clau.se extends only to England, Wales and Hi-rwick- upoii-Tweed ; thcefore, I think officers, so deputed, may make seizures in the Isle of Man. for importations con- trary to the Act 7*^ Ge<»rgii, and prosecute tlie same to condemnation, in die proper Court there, but this must be done, not by virtue of their (U-putations, but as com- mon persons, by force of tlie Act of i*aili;uiient r. YoHKK. August 23, 1727. HOW FAR COLONISTS CARRY ENGLISH LAWS. 215 (7.) The opvmon of the Atlorney and ,Solieito,'.Gm- cml 1 a,^ and Wear;,, a,r the e^temion o^ the La,o. of E.,I^to the CoionU., and on other aiu^l^gous iojs To the Right Ho,.orable the Lords C^nmLs.ioner« of -rado and Plantations. May it plea.se your Lord.«lups • In obedience to your Lordships' c'onimand.s, sipiified to us by Mr. PoppK, b,- ,,, j.^ter dat^-d the 4th of ' bruary ast, tran.nnttin« to us the annexed copy of an order of then- Excellence., the late Lords Justice., made in Coun- C-. , and requirni. o,u> opinion upon the matters therein re erred to your Lordship,, we have considered the said <.nlc>r. wh.ch contain,, in substance, that your Lord- sh.ps should consider what laws, now in force in the Inland ol Janm„-n, will expire the 1st of October, 1724 and wh,.t laws will remain in force after that time; and hat your Lordships should also eonside. up<,n what .">t the government <,r (hut island will stand after the said 1st of ()ctober I7'M .... i i . . K...n *i • . "^**''' ''-^' '"»' under what circum- Umes the .nhab.tants thereof will remain, in rela- ;"" t<. their .lepen.lenc-e upon the authoritv of the < rown ; and that your Lordships would t.ike the opinion of Ills Majesty's Attorn..y and .S.li.-itor General there- "1"- and ...port a full , state thereof t<. thnr Excellen- in the first settlement of this Colony, and the con- t<.'ntions w liich have ))een kept on foot ever hince, be- tween the respective Governorn and Assemblies of the people, we find many things, of no little conseipienoe, left in great uncertjiinty, at this day ; and in several in- stances, it is very difficult to leani what was the real traiisactiou, by reaMin of the impertiect accounts which have been sometimes transmitted hither. 'i'he point.-* s])ecilied in the said order of the lat** Ijord .lustiies, whereupon your Lordsbijw have beiMi pleaned to require our opinion, are three, viz; What laws, now in force in Jamaica, will expire on the 1st day of OctoU'r, 1724 7 \\ lull liiws will renuiiu in force aftn- that time 7 l'|>oii wbnl f(M»f the governnu'iit of tbat Island will conlitiue, aft^f that time, particularly u relation u 'An dependence iqxm the authority of the Crown of Great Britain 7 As to the laws of ib«' Island, they .ippear to have been niadi' in 'lill'erent nuuiuers, and under diilercut HOW FAR COLONISTS CAURV ENGLFSH LAWS. 217 powers, at several periods „f time ; and becau.se in con- sidering them, .some Tacts will occur, which may be found to be material, with rehation to the tiiird point re- ferred to us, we bog leave to state the case, as to this head, more fully to your Lordships. The first commission of a (Jovernor of this Island which has been laid before us, was granted t.. Colonel Edward DOiley, bc.uin^ date the 8th day of February lObO, whereby he was ..n.powered to do and execute all things appertaining to tlw oHic.. of Governor, which might tend to the defence and good governu.ent of the Island, according to s.uh powers as were given him by his commission an.l instructions, anons to be .h.-Wil indilferentlv by as n.any of , he ollicers o'- the arnn. planters, and inhabi- tants, as bv h.s best and most .-.p.al contrivance nnght be .idmitted then imto. W.th the advice of thi>Coun,.il, or anv five of them tb.. (.overnor wn,« ...npov .red to erect and constitute Civd .lahcature... w,(b poucr toadm.nister an oath and to do and execute all and every .such fut Lhor Act and tt III n!^ ' - -li 'm u: i- 218 OPINIONS OF EMINENT LAWYERS. fllli^ ti-^ i? rf 'i Acts as miirlit conduce to the security of the Island, and the people thereof' and the lionor of the Crown. By al virtue (it tills coinmis.'^ion and m.-jtructions, severr 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, con- clndiiifr. :s\vc:i under my hand on such a day, signed by the Governcr: and several of them are mentioned to have l)ei'n proclaimed in the Island. Amongst these is an Act, or order, for laying an im- post upon .strong li(piors imported, viz; npcm every tun of Spanish or French wine, four pound.-^ sterling; every gallon of brandy, or spirits. six])ence : and every tun of beer, twenty snillings, and after that rate for a smal- ler rpiantity. I\eiiiedies :)re thert'by provided for the levying and recovering this duty, jind |)enalties inflicted on the persons committing frauds tlicicin. Tliere is ;dso another Act, or ordei-. for laying one shilling per ton upon all >hips trading to this Island. Many other ordinances appear to hav<' been made in the same manner, for tlie better governinep.t of the Is- land, lor r 'gulating trade, and redressing pul)lic mis- chiefs; and some particular Ac!s in tbo Harbadoes' book (as ii is tliere expressed j are ordered to be in Ibrce in .biniaica in many of these ordinances, penalties anil forfeitures t" til.' Kii.gar" inlbcti'd ; in>ti<.'s ot tin- peace are spo- k.'U of as magistrates then in being, tliough we cannot find any general roiistihition of ju ticfs l>"inte.| I)eputy-(i..vernor under His Lordship, and "I'Mv particularly .'iie ordinauee, which is entitled, an av the (i..\eiiior and Cnuncil. for the raising a public rc\.Miu«- <.ui of >t-uiui li(jiiurs inipMi-t.MJ t,. this Island. I5v tb: nidinaiir.v i,n| only iieu nietic .is otjcvyingand '•oUecla.^ tue iornicr duties are provide.l, i.ui ulau tho m I Ill rH; ^i 290 OPINIONS OK EMINKNT LA»V\KR8. duty of four ])oun(I.s sterliuj:;, per tuii, is imposed tipon all Miuleira and Fayul wines, as wns, l)y the iornier Act, upon Spanish and French wines. But, on the 2:5d day of 0,-toher, 1()G3, Sir Charles Littleton, with the adviee .if the C'onncil. made an order for calling an Assemldy. to «M)iisist of thirty persons, he- ing freehohU'rs, to he fiiirly and indifferently chosen in thr* several quarters af the Island. In the same h(K)k, in whi( h these Acts or orders are contained, and innnediately following them, is a trans- cript of a liody of Acts of Asseml)ly, without any title, save the word Jamaica, and tht> letters S. C. L. at the top of the first page, which we apprehend to stand for Sir Chnrles Littleton ; these, wi' conceive, to he the Acts of this first Asseinhl,\ . Amongst these acts there is a very romarkahle one, entitled, 'An Act (or cnidiiniing divers Acts of the (u)vernor and Council of this 1-Iand, and repealing all other Acts and ordinances." in which some particular Acts or orders, are expressly confirmed and ordained to he of as full force iis if tlicy hiid heen enacted by the (lovernor and Coiuicil. with the consent of the Assem- bly ; nil other Acts ;ind ordinances made by the Govern- ors and Councils oidy are declaicd to In' utterly void. But a clause is inserted for imiemnifX iug all officers and other i)<'r.M)ns who acted nnder tiuuii, lor Acts done be, fore that time. W«' have been tin- more particular in stating tlH»so facts, because from them it appears, that it was insisted upon by the people of i|,(. Island, at that time, that t'.ie Arts, or oi-diuaiices. o|' tlie natin-e ot the laws, whicli Uad boea formcriy made by the Clovwuorb nud Council HOW FAU COLOMSTa CARHV KNGLISH LAWS. 221 only, wore not binding laws, but void in tbemselvc for want of tlH. ,.c.n,sont of the representatives of (ho peo-ie met in an Assembly. ' ' Agreeably to this opinion, a new Act was n.nde for estabhslung Courts of Judicature, and also a new reve- .-e Act whereby duties w- .e laid upon strong liquors ported, varymg only in or.e or two particulars from tiie former duties. But though these Acts passed in the Island, they d-« not appear to have been approved by King Charles the Second, and, eonse-juently, could continue in tbrce only tor two years. '' The J5th day of February, 1603, Sir Thou.as Modv- ^ ford was appointed Governor; by his conun=ssion e'x- press power was given to him to choose a Couwci' of twelve iK-rsons, and with the advice of them, or anv ive, or .nore of then., t« n.ake reasonable laws, .-onstitu- tions, and forms of govenunent, nmgistracy an.i execution |>f Justice, and t<, erect (-ourts of .Indicator,. : j.rovi,|.d he laws to ,. made w..re as near .. .oi.bt ll. to the aws of England, and did not extend .0 take awav any ngh of any person in their freeh<.l.. good., or ..Ik" tlel,:. or to the loss of nu.,nber, and so as they were trans.uit- ted to ll.s Ma.)esty to 1k> aj)provefl. IW uas al., given to the Cov.rn.., .i.h the ad- v-oMheCouncd. to establish and frau.e in och a way »J nKuuuM., as sl.,nld |K> thought liMbr the .dlin. of .-;nU Assemblies of treeholders and p t... acc:rd- «na int H,u.i Assemblies so e.tabjished iVoni 2''''' ■*"V° "'"k". "•■ 1. .,:,„„., .,11, 222 OPINIONS OV EMINENT LAWYEKS. if ,.^ V' « * ; \ r. i| ^t tutions, for the good ot'tlie said Island, the inhabitants, and government thereof: in tho niiddng whereof, the Governor was to have a negative voice, aiul also hv their consent, upon eminent occasions, to luv\ money for the safety or good of the puhlie. Tliese laws to he, as near as might he, suitable to the laws of Kngland. and not to extend to the taking away rights of freehold, or loss of member, and to be in force for the space of two years, and no longer, unless conlirmed by the King. There is a clause in these instructions, that wjiat shall be requisite for defraying of the pu])lic charge and ex- pense of the government, shall, with the advice of the Council, be laid upon hot Avaters, strong drink, import- ed, or made and spent there. It does not appear, Miat any Acts or orders, in the na- ture of laws, were made bv Sir Thomas Modvford, and his Council ; but, in Kill, he held an Assembly, which consisted of two representatives, chn.-on l)y each Parish, by virtue of the Kings writ issued hy the Governor, by the advice of tbe Coi-ncil, at which -everal bills pas- sed, Imt, whether all oi' them received the rss-ent of the Governor is uncertain, liccnuse, to some of them, his consent is particularly subscribed, and to others not, and amongst those which are not so sidt^cribed, is an Act, entitled. ■ An Act, declaring the proceedings of the Assembly, convened li\- the l)cpnty-Governor, Sir Charles Littleton, ludi iind von] in l.iw.' Tjie reas(ms given in the preamble of that Act ,Uf. Ili.it disputes had arisen, touching the writ, wlu-ieby that .\-e, and are belonging to His Majesty slicge people within this Island, as their birth- ngh and that the same ever were, now are, and ever .hall be, deemed good and ellectual in the law, and that he same shall be accepted, usexcept only such statutes, or so much of them, whereby any subsidies, loans, aids, or other im- positions, were granted or marie): provided, neverthe- less, and It i.s hereby further declared and enacted bv the authority aforesaid, that the said laws a.d statutes may, at any time hereafter, by the Governor, Council and As.sembly, be mitigated, altered, les.sened, or enlarg- ed, according as the cmstituti n of this place shall re- ^ ol" England as may be, and .';'^7'^''-'- *c Second, in Council th" l,th day ,,1 Apr,l, im. ,„.d. ...ether with ,o ,„ueh of the Act.s of (J82 a.s were i , , wa.s^^eiti oy repealed, were or- (leied to con Mine in tbrofi I , i * r^ ,, , , , ""-"iiorcxi -'"« twenty years from .1.C St day or Novend,er, 10«:,. A copy of LZ . w. a, also the titles of these last ntentioned Acbl .^pecihed. i» .■nuiexed, marked (13 ) ,V°1';r,-;;'"'' '":'■' '"' ' -"J '-ntyyear, expired, V..!. lu 1,03, an Act passed in the Assaublv ,.f the i,- .ucnt.tle,. .An Act t-or raising a revenue to Her M.Ue.sty, her he,r,. and successors, for the support of the g";er,nn,.ntofthis island, and «,r main.ainf4 aud re: pa.rn,g Her Ma,|e,ty, ,orts and lortification.V' whic ■ wa, conhrnted by Her late Majesty, in Uotmeil the ITth '■;'■{> ■ 226 OriN.ONS Ol- K.MINKNT I.AWVHIiS. '^R 1 ^ I ."^ \j i\\ 1)1' AllUI!- rn 'I'lii-- i< tlh' rcvciuii' Act now sub- sisting. ;i!it| uicirin IS all cxi •lausc. that iill the li I\VS ol Jamaica coiilirnicil in Council, the ITtlidavol" April, his lor our ;iii(| t\s,'nt', \'eai"s. and noi \n fore tlial lime, or liiereKv i''[ieale(l. and al-o tlial Al da\ .li'O. I-Imt. IT": _'ars, h 1 i;is i.rcu iciiic^eii \i'i\ \o ti<. Iiy Ml'. l'o|>ple, that het tve '.' liie re--])iHli\ e peiiods ol' the eontimuince otthe two la-t Me.ttioned bodies (.facts, j'.nd al^o since the lust eonlirmal iou. :c\('ra.l jKirticiiiai- .\it of Assendlv iia\ c passed, w lii'h aiv pijrpetii.d in Ihcir nature, aud hax'e been L;'euciall\ (■outirnied by ih.' t'rowu, witjiniil rela- tion to I lie otluT hiws. .Ml llie-i- Aids (except the fe\u'l:i-t; are contaiucd in (lie piiuled eolk'ctions of the laws ci Jamaica, aiul a s'diedide of the titles of theui is iicrc unto annexed, iiiaiKcij (<■) It ha- iiccii ii'pic-cii. (I o U' , li\ .Mr l'o|ipU'. that th» are nine acts of Ak^'OIiiIiIv . |ni|i(tiial in the frame ol'tlicm \*!iiiii hive boon trai'Mi, lilt d hither at s»'\enil time- hit \wen the year 17I-. aud ilieyear IT'-'"', u hitdi iia\c :iut hitherto been I'ither appiovevl or di-allo\ved by the Crown, so that thc>e ha\c>. a', present, the force of laws in the island. A s(die(lnle of tin- titles liier«'of is lierinnito anne.xed. marked (D.) Kii'iii this a'eount of the laws of .Fiiniaiea, wi,i(| I IS the be-t ue have been able '• rolleet, we arc ol upniion, that all ;he nets of As^i'liil ' - HjM'ei.ied, and cMiilirmed, ,n till' vN.i ortlers of ('unneil. of tlie 1st t»f Octolur. ItlS'J, and the ITtli April, IliSl. will delerniinc with the reve- nue nc I. on the \*t day of Oeto'icr next iiuiniii't thc'^e U thuuul} law uow in b^ii)g,lurap|)oiiitiKgitiiil cnt •bliuh- HOW FAR rnr.OMsTS C.\nn\ FNCLISH I, \W: OO- !M,ir their A> ■■iiiMv; an art for M'ttlm^^tli,' militia; an ii.'t tor <'staliliIiar.s |)i(.rc.'(lin-~.\\l,icl, ri'iiiilato^ tlie course ol'lc-al pro.H-rd- "'."'''• ■•'" i"'f '"'■ :i-^i'<'rtaiiiiii-: til.' .|iiit rciit^. and tlie MiaPiui' of icccipt lli'ivol'; and .-evc-ral oilier ad^ of ivreai .■on-eiiiie,,,.,. (., (h,. government.aiid Widtiiri- of the colony. It ha-^ IV, t appcrcd to ns. that any aotH made anteee- denf t.) those of lt)S2,d.) now continue in force, or can revive iiptm tli.'ii- determination. The jiri: uil eolieetion of the laws of tliis islanl. l)e- .iiins with those of |(;.S2, and takes no notie(« of Mnylhin- """■'' '111 •i''"t ; and it appears hy what has lie.-n .ahead v "'"''■''■ I'l'i' -il tl'o (Joveniors hef.-.re that lime. {<\rr^A ("wlni;,.l DOiley, wl»o was appointed in ICiKi.) were re- .-•traine.l t., mak,. la w.<_ to oonti"nr, any hnij^er linn 'wo year-. 'I'herefore. if an\- precedent hvw.-( can lir pieh nd- '''^ '" '"■ 1 I'"'''' "!• 'Miiahle of t»e''Mjr revived, they 'iii>l have I,,-,., I ni.uie In hiiu. JJnf jf .s,vni.s U> ii.- very «ic il«tliil up Mn his o .her It \va> the iiiieiii!..,! of 111, ■ (Vown to jrjve him a general I'ow.'i- ofni.alvMi- perpetual law-, or oidy ordiiianees aial !cmil,itioii- i;,i thr presei admini.-tration of the i;overn- 'ii'iii: and uv the rathe, inelin'.- to think the hitter, he- -au-e il... u,,id law is no wh.>:-e mentioned in th.- an- 'liorific-^ uiveii to him, and then i^: no reserv.ition of |".\v. r t . the Crown to anprtr-e oiMjjsaMow the eonstitn- iions he sliould make, whivdi eo dd hirdiv have In'en """tird if it had heen iniended th honld make periHauftI laws Besides this, it is to lieoh.erved, (h.it hit aets wore mad<^ hy thy Oov^.rnor h.mI Comirii. without any As^.mhly of t||^pe..|de. and tii.ai-.rh that Conncil w.i« (lirteted to ht> indifVerentlv eU'etwl hv an mam of j<. C^ : \"s ,.d> nances. As there aic thu^e ddiibt^ cimrernini: those acts or ordinances in their oii<:iual.aiid no cMmph'te siilimisMon ever yielded to them by the people, xi it iloth not ap- pear to us that an\ of them have been acted under, or put in practice since the year ItiC:;. bnt the entries in the books in your i^oidships' ..lliic. i\,, in ,)\w ajipi-eheu- sion, impori the contraiy And lor thoi' rea>oiis, we ai-e of ojiinion that tlie\ i annul jinw be considered ua snbsi.stinir la\\>, or pnt in exi'cniinn .\- to such acts 111' A>-emb|\ ii- ii;i\ .■ Ini'n made >int • ihe \e,ii- KIM', pei|ietnal in their naliirr, and cimlirnied ^eiierali\ b\ the Crown, \\hirh are H|„.rilicd in the schedule marked (('.), wr .,|ipr.lirnd th.'\ will iliinie in full force after the expiration III ! he r.'Mnui act and H> will also those olhei art-, uol \v.l appi.iviil nr disal- lowed nil ii(!(»iieil in w|HMlul«'(n.^ until His Majesty nli.iU be pha.-id I., declare hisdisulluwunce of thoiii, uud HOW FAR COLONISTS C ARKV B:NGLTSH LAWS. 229 then they will cease. These are the only acts of As- semhh- of the island whieh, so laras we have been able to be infornied. will remain in force after the 1st day of October. 171^4. 8nch acts of Parliament as have been made in Eng- land, to bind tlie Plantations in general, Jamaica in pa-- ticnlar, and al.so snch parts of the conniion. cr statute law of England as have, by long nsagr. ;iiid general ac- .piiesci'nce, been received and acted under there, thouirh without any particula:- law of the country for that pur- jH.sc, .vill (as we luunbly conceive) cnutiiiue ..f the same force after the lirst day of October next as they were betbre. Hut we must observe to your Lordshl-.s. that we ap- ].rehend tlieiv nmy be great ditliculties in putting such hiws as wdl edutinue in force, in execution alter that time; becauM', though tb- ( 'ourl^ of diidicature which have I.een er.rti'd by the Oovernor an.l(,Mmcil. from time to tnue, by authority from the Crown, will remain '" ''i'' '^':if'' ""•;>■ n(.w are, yet pi-vticidar I'egulations and kinds c,f process and Ibrms of proeeei|inu-, lia\ ni"- l)een institute.l by Act- of As.-embiy wloch ^\ ill expire, it will I.e ditlicnit tbi- tile . bulges to know b\ what i nles ti p pl'oc ced, 'I'll. ne\t -eiieral (piesfiun upon whlcli \,,ur l,ord- Hhips are plea-ed to iv(|uire . ar opini<.n is l'p,,n what fool the L;o\,anmeiil of.lauMiea will continue, aftei' the fu-t o| (>c|..Imi- iir\l. paitK idarl\ iu relation to it - de- l"'i"l'''i'''' iij '" ""' :i'iflioiil\ ..f (lie ('.-,, wn ..|- (iivat P>nlanr .\- i" this jioint, we- apprelu'iid that the evpiration of the Law.- before mentioned, will not. in geiieiak weaken or take from the iie|M.ndence ... thi,^ l.lau.l lipon (he « riiwu ot (.real Unluin. 230 OPINIONS OF KMIXF.NT LAWYERS. 'km --/ Tl le powers o\ (^ruoi- 'UK Council, will reiiiiiiii ms tl Ul! icy iire now, uiilc-s juiy piu-tic- ir pai'ts of tlu'iii rclati' to the piittini;' in oxcc-iit ion Acts of Asseiniilv which will tl ICIl CXI)' c His Miij(>^t\- urn- iil-o, under His (iixNit Si'til. Civc ^- jndtres and otiit ers. and adinini'^leriM.i:- Jii-licc in hi.s ( .iirts : for orderiiii;- t'lc militia; and doinu- all oth<'r acts which lielon.Li' to His .\hije \ to do, l)\ 1 live. And in le^ial his prero^M- pidcecdinL^s. an apiieal will lie to His Majcst\ in Coiiiicil. in tl ic vaiiic manner a- it does now. The cliicf dilliciiltic^ with icuard to u;ovcrnnieiit, will arise unch'r the head of the rc\eiiiie to the down, and the power of niakiim ii ew \i\\\ As t I the rcNcmic. it iU.us not apncar to us that anv will sui.-ist. alter I lie del ermiiial ion oi' l he pi eseiit rc\ c nue act. Iic.>ide.- liie u'lil- rc>er\ed wpoii the -rant- of land S, IICCIK'CS to f sellini: ^tioni;- liijiiois and tl IC casiia ! rovemic of lines, forfeitures and e-. Ilcat^ ill the reco\ cry whereol' thci.' ma\ he also some dillicullie-. li\ rea- son of the expiration of llie laws tjireeiiii^- the inelhods of proceedings now in ii^ .\: o the jiowcr of rai^-in;^ any new re\eni;c tor the >ii|i|iort of ijoveniiiienl. I>\ 1 i\ ini^ new ta \es oi' inino-itioi IS llliiin III.' peuplc it Wll de|M'nd upon the toyourLord.ships, upon a supposition that it may • •onie out < iili, r way ; u.t. if it should appear that this island can now oidy be considered as a colony of Eng- lish subject^, y,.t we are clearly of opinion, that since tlu- present Act of Assembly of |tiS2, api)ointinjr the iH'iuber of meml)ers of the .\.s«^embly ami the plac.M liom whence thc.\ are to comr. will expire with the revenue art, (m the lirst day .fsemblios, .so summoned^ will have the same H:| I t HI & OPINIONS OF EMINENT LAWYERfl. authorities to make laws and rai>se money, as the pre- sent or any other Assenihly have been possessed of. P. YORKE. May 18, 172i. C. Wearg. (8.) 7//r' opinio),.'^ oj Northtij, lii/der and StnDuje, on the (lUroiidiniaiue of the American Art of Queen Anne- [Copy of the opini(jn of the hite Sir Edward Northey, Ilis Majesty's xVttoniey-CJeneral, in rehition to the American Act, dated the KHli of February, 171o-l().] I am of opinion, that the whole American Act was intended, and appears to have been intended, only for tile war. ' Ya->\\. Northf.v. [Copy ' !' ,. inl.lv. at what tin ic. and under what cireumstancLS, he!( 'n,i;cd to the Kini:. -nh jcet to after regulation hy the I- ''■III I-'-ir-L.tm Ih eolonists carried with tl leni ihe liihil lUK Ilia! n-.it oi nei- ther heing taxed, nor ruled, hnt wiih Ih given either direetlv. or viilnallv. ■I I" "\vu a.^.Hiit, Fir>V till, isl, mil 1; (U- de- Ol 234 OPINIONS OP EMINENT LAWYERS. ii !,^ Ml sired to give a full and explicit answer to the following quofrei viz. Quare. — Whether, notwitl.i standing the King's second proclamation for continuing all officers in their respect- ive posts after six months from the demise of the late King, the act for supporting the honor and dignity of the government did not determine, and the salary of £G000 jH-r aiuaim, therel)y provided for the Governor, ceased to be due, by reason that his new commission was not obtained before the six months elapsed 1 And, whether the gentlemen of the vestry for St. Michael's parish are obliged, or may refuse, to lay the tax this year, as they have usually done, in pursuance of the said law ; or what will be proper for them to do in this case : divers of them being apprehensive that if they lay the tax they do thereby allow the act to be in force, and they will be afterwards boimd by it, although they are of opinion the said law is in fact determined 1 It has been generally held, that at oonnnon law, all patent** determined Ity the death of the King by whom they were granted; and it is observaJ>!'\ that, on the death of King James the First, the judges tliought it saf- est not t<. act till their jxitents were reneweil, although there had bt-en a proclamation for contiiuiing them in their several offices as betbre; the reason (»f which opin- ion so far prevailed, that even on the alMliciition oi' King JnnieH the Second, many la'.VMis held that tl <• judges' commissiims determined, from the time of tin King's withdrawing. However, by the stat. 7 nud H W. '.i, whiv'h was explained by a sul)sequent stat. of 1 Queen Anne, ch. 8, all oommissit)ns of patents are iimdc to onn- tijuie for six months after the demise of the King, unless superseded, in Ihc meau tinyj, by the successor. Now OP THB COLONIAL CONSTITUTIONS. 25§ the Governor, holding his place by virtue of a commis- sion from the late King, and that not having been re- newed by hi« present Majesty till after the six months were elapsed, it would seem just enough (taking it i^ tins light) to infer, that his excellency ceased to be Gov- ernor at the expiration of the six months ; and conse- quent ly that the act was no longer in force, tl,e same being hnuted to continue only so long as Mr. Worsley should continue to be His Majesty's Captaia-Genera^ and Guvernor-in-chief, and in that quality personally re- «ide HI the island. But, I apprelu^nd, that this case w.U tuni up(.n its own particular circumstances, and the reasonable construction which is to be made of the act for settling the £6000 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 ExceUen- cy, as long as he should continue in the government • for to contnme His Majesty's Captain-General, is undoubt- edly the same as if the words had been, to continue the King's Captain-General; and since the King in a egal underst^mding, never dies, it seems to me', that those words do not confine such provision for the Gover- nor to the then reign only, but that they take in the whole tm.e of his residence here as chief magistrate which C(mstruction, I think, is plainlv indicated by the preamble to theact. Now itis certain that Mr. Worsley has continued pers(,nally U> reside m this iskiid ev^ muce h,s first arrival in the (luality c^" Capt^in-G^wi iic., and thrt he hathduriog that t*u»e oxoreisod all eoti ot govenm.ent, in every ros,K.ct. without interruption " Whcruis, ,f tUc royal prochuiiiinan wo- n-* ^r^m^-^ IP I 2S6 OPIXIOXS OF EMT? LAWYERS. (luTo. ill one of the King's colonies) to continue his Ex- oelli'iicy in his uovorinnont from tlie end of the six month-; to ilic date oi" tlio now commission, I conceive all surli iicts (if his. (luring that interval, as well as those of snbordinato niiigistratos and judges, were absolutely void. a:id thcii.' Avould have 1 en a total discontinuance of all process and causes, hotli civil an:l criminal, throiighniit the ishind. which Avould introduce the ut- most ei>!it'iision, ill point of ])roperty, and occasion other inc luvetiieiices of the most dangerous tendency. If, then. t!ie -ecoiid proclamation did effectually prevent tiiese fatal consequences, which thenature and necessity of the tiling, as well as the general practice of all in authority at that time (and perhaps of many who now start the olijcction.) doth evince, it must be allowed Ih.il Mr. ^V(ll■-;^■y continued His Majesty's Captain-Gen- eral, aii IC \ cii! ir-iii-(diief of this island, witliout inter- mission; and I'r nil tlience it will as strongly follow, tlint the act i'or Mipiim ting tiie honor and dignity of the govi-riiMi iif i > Hot ileterinined, But admitting there wi'iv any (hmi'l ol' tiiis matter, 1 slumld think it the safest way, fr su(di as are concerned in a public capaci- ty, to (lo \sliat is rc([uired of them by the act, since it halh n >t \tt lircu (h'claicd \()id l)y a ecmipetent author- ity ; bu(. oi! tlic contiai-y, it is manifest from the Gov- ernor's 1), \ in-ifuctions on this head, that it is taken lo l;c -tin III loree, hy the same sovereign power which confirin oi' lepcils ail hiws made in this place. And as tip |i(rtoniiii,L'. the '.iities required by the act will avoid the I'l nalties otlierwise to he incurred, so it will at the -ante t'wnr !"ave every one at liberty to try, if he pleas- es, the vafMiity of it. in the courts of law. Upon the whole, I am oi upiulou that it will be most advisable for OF THE COLONIAL CONSTITUTIONS. 237 the gentlemen of the vestry to proceed a„,l apporticni the tax in hke manner as they have hithertodone , hutth.-v may, however, for the satisfaction of such as are dubiou^ make a minute in their parish books, rc^ervini;- to them- selves all benefit and advantage of oxeci.ti..,,. in cshc the low should be deemed not in force, which, I conceive will be sufficient to put the gentlemen of the vestrv up- on equal foot with other persons in this respect whiNt It prudently leaves, at the same time, the point in dis- pute to be determined by the proper judicature. April 10, 17:^9. '^^ ^^•==^^-^'^^^- (2.) Ihe opinion of Mr. Ihomas Reeve, on the mine sithitct, 1727-8. I am of opinion, that this act is not determined by the demise of His Majesty, King George, but will re- main-in force, as long as Mr. Worsley continues (lover- nor of Barbadoes. and shall personally reside in the Is- land. It is observable, that the tax, &c., is granted to His Majesty, his heirs, and succes.sors, during the con- tmuanceoftlieact : it is limited to contimu', iWr s.. long time as Mr. Wursley shall continue to be llts Majesty's Captain-General, &c. Yet, I conceive, these words wJH ha 'the same con .tiuction, as if it had been limited to continue so long as Mr. Worsley should be tlie 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. Tuos. Eeeve. Jan. 15, 1727. 288 OPINIONS OF EMINENT LAWYERS. Thih act Ls to contiiiHo no loijjijer than Mr. Worsley shall continue Governor, and be p'^rnonally resident on the island: ii'he once ceases to be Governor, thoi'jrr '. hath afterwards a n.w connnission granted him, I co»^ ceive the act is dete.iiiiaed. By the statut*^ ol (j^-. Anne, the connnissions ol' the Governors or tht- planta- tions are contiinunl, for six months after the demise ■" the Queen, or her successors, and if a new commiiwion was granted to Mr. Worsley Avithin the six months af- ter his late Maje.'^ty's demise, it may be a oontinuanee of him as Governor witliin the intention of the act, though I think this point is something doubtful ; but if the six nionths expired, and then a new commission was granted, it seems to me that the act is determin- ed. Thos. Reeve. Feb. 1, 1728. (3.) Mr. ireiY'-y opinion, hi 1725, ivhether a Governor can vote a-s a Cot(/uillor. To the Right Hon., the Lords Commissioners for Trade and Plantations. My Lords ; In obedience to your Loidsln'ps' comn nds, signified to me by letter from Mr. Poppe dated the 24th day of November last. I l.-ive ronsidei^ii .ii following qtttpre, Whether a Goveni'M' <■ ;i vote, as a Councillor, in the pa.ssing of bills, wlie.i tlie Miii'ii hIs in their legislative capacity / Upon consideration of which, and of the Governor's commission, and instructions, I am ofojiinion thata Gov- ernor cauiiot, by law, vote as a Councillor in the pabsing OF THE COLONIAL CONSTITUTIONS. <^^ WI1«, When the council «its in their legislative Jan. 8, 1724-5. 239 capac- RicH. West. (*.) Jfr. He^t'^ opinio)) y« irio ^ ijfi/nvn 1)1 1 1 lif, concern ivo ri nr»i^ ^ Tml^'^i'p,"™'""'"" "'" '^"■■''■' ^^o„,mi,„i„„er, for Irade and Plantation.s. My Lord.s; ment or proroL'ation miv fw> r, , 'ifljoum- in? accm-din.V ■. ■ ^^ P''"'-"^^^'^'^ without a meet- Ln Ta ?^r '"^ 1--— ■^acljourniHeP.t, orpn^ro^a- But an I beheve so g.uen.l an answer to the cmestion JlliTeT'f r'"' "T' '"" "><■««.->»- "wnones ot the several provinces in tho Wo.f t ^- leant .« ext^-nsive as it over i "7''"^^''^^ '^^ --t ♦« ,. •'■ '^^^**' "■'•^inKnghui. . In ro«iDet>t The iH-ero-ativc in the \\\a r,.,i;.>. ,..,, .. I! ■ li i ■n .-s i^^i 240 OPINIONS OF E.tllNENT LAWYERS. its iibriilgod l)y <;i:ints, &c. made to the inliabitantt^ of the respi'ciivo provinces is that power over the subjects, eonsitttTnl either si'parutely or collectively, by their rep- resentiitivc^, alii<'li, by the coiaiuon law of the lan.l, aD- .structeo from all act* of parli-unenv and grants of liber- ties .vcc, Irom the Covni to the subjects, the King could rid or ■•iiumscribed l)y any act ot par- liauKMit ; and. tiirrcfore, if the atHrmative part of the qi'.e.slioii i- iiiiiaacliriilile in Knjiland, it is imposMble a governor should be empowered to pnMJli.-e it, in Amer- ica. riif .t ti'ii).,n itioii tlicrcforr, of mis ipiestion de- pends rntirclv upon tin- cu- toui of ur Knglish parlia- uient.s ; in relation to which I si, ill observe to your lordslnps the.se rwn partier ,m that day, vet surh th..ir .t tendance IS noways necessary,butth..pnwo.:,,, on woukl fH-' just as g^""''-'-'^ tlH- troubh. of ,„, ,•,„„. t^>wn. and the eonnMes ai.l towns tln-v npn.s.Mte.i the .•xiK'n.se of th..irjournies; but the latter prarti.e' b.,s '-'•u to supply this by printed pr.H-lamat ions ibough t- tins .lay. according to th- an<.ent n.s.o.u (br wnt m '■■■.%-i w 1 M iT 242 OPINIONS OF EMINENT LAWYERS. comtontlv mul in the piU'li;mu-nt chiunl.or: iin-i tliut your lordships may jncl-.. wIk'Urt tlu- moinbers were discliarired fr..m .itteii.r.n- on tl.e.lMV t- wLleh the par- liament ,s some elau-es of the writ. But first I must ol.serve. that th." writ is not directed to anv particular person, hut is -eneral. lik»' a prorlan.a- tion.'the stNle of it i- thus: - / >r. J^h'.ii.s ct ^H^hm^n., nostril pro Infl^. noi^nnfflhu-^ rocerihn^ I'C'jni imstri Uu,lw ac dikdi>i d JidAihui umfri-s milHH"'-^. rl r !/,».,, et In-qeu-slhn. dktl re.jn! no.fri. cO'.." an.l then, after ^.pecifviu- thedav to which the Kin- thinks tit further to proro-ue hi^ parliament, the-o is a clauM- inserted. ,;,, „„ ...her purpose hut t<. -lisrhin- thr memhers fynm mrrtin-. on the day to whi.d> they were antece- ,l,.„,lv .„nnnonr,l.vi/,: ^'lia qvwl nee COS, nee (diqim veMnnn n.' dnhn,, dkm ap>ni anfatemjrneduiam com- perere hneamini, .sc» arrkmhi : rohmus enim vas et^ quewUhet rc-'i„u„n.is..oM.- "'isNion, ami wc conci'ivf 1,, ,. •„i,( ,„ , • . . '■' ".» * " iiu' oj (us coin- nn.H.o„, cl.,siK«.Mc.,.« tiK. i ..uuntand (o.n.cl ..nd h |ot, on the effect of notice on the va- lidity of a (rovernor's commission. The Lords Proprietors of Carolina, having always ap- pointed governors of that province, before they made a sale tlKMoof to the Crown, those governors, with the con- nt 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 pur- chase;. Qiuere. — Whether any laws passed after the said pur- chase by the proprietor governors, in their name, before notice of the sale, are valid 7 Whether laws passed in the proprietors' names, after notice of such purchase, a;i(l bd'ore the King ai)iK»intod a governor of his own, be valia f \\\' arc of o[!inion, tliat laws pass^'d by tho viovornor, ap|Hiint((l li\ lb' Lords Proprietors, and in tlieir names al'tci- tlir ah', and bftnrc notice thereof arrived in the prii\in(c, are of tho same validity as such laws would ha\(' licrii if they had been passed in like manner before .-^uiii >ah' ; 1-ut that any laws j;assed in the proprietors' names after notice of their having conveyed their in- terest to the Crown, are absolutely null and void. P. YoRKE. August II. \r.Vl. C. Talbot. (7.) 'llie opini/)H of Mr. Thomas Reeve, ami Mr. Lut'tu/rfie, on the continuance of tlie (focernors com- mission. This act Ih to cont-uiie no longer than Mr. Worsley shall contlmu! Ciovernor, and be personally resident on the i^lalnl, If ln' ..iie (-ovcrnor, though he OF THE COLONIAL CONSTITUTIONS. 245 hath afterwards a new commi8.si„n granted him I ,on ceivo the act i. determined. By tlie stat. of 6 Ann the comnnssions of the Governors of the plantations' are continued for «ix months after the demise of the Queen or her successors ; and if a new commission wa.s ^rant^ ed to Mr. Worsley, within the six months after hi^ late Majesty's demise, it may be a continuance of him h Governo. within the intention of the act, though 1 think this pomt is something doubtful ; but if the six months expired, and then a new co.nmission was .rant..] it seems to me that the act is determined February 1, 1728. m ,, 1. Keeve. I am of opinion, that upon the demise of his late- \I, jesty the act for granting the £(;()00 ^,, ,„„,,,^^ .,,j not determine . for I think it is clear, that the Gover- nors commission continued, for the space of six months after the death of the King, by virtue of an a.t of p.,,- 1—nt, ,n Qu..n Anne s reign, unless the ninisliou was supersede.: ,n the mean time ; .„d if the ...nnui.- s.nn wits determined by ending at the six innnths 1 .„. <•! opinion that th. act h, 1 detenuine»^. that It will entitle biu, so long as he remaius (Jov- ernor, and continues without intcn.i.ssion ; but neilcms 't ..light be lua.ie plainer by seeing the whole a.t February J, 1728. t i ! I 246 OPINIONS OF EMINENT I AWVERS. M N. B. The ihst C()niiiii.s.sion, datjd 11th Januarv, the 8th year of our reign. The second commission, dated 8th Hay, 1728, being the first year of our reign, which was eleven months after the late King's reign, (8.) 7 /tc opinion of fill: AttaniC!/ and >SoJici(or-(rt ti- ind. ]ii/(l( /\ and 2Inrriiy, on the f putting that ])ower in execution; we there- fore desire U) see tlie same, and to know wliether th(> Governor's ])rivate seal is cdmmoiily made use (^f, in the grants of any, and what offices in th<' plantations. It will likewise i)e necessaiy to l»e informed, whether the insta'iee. in T'l'.H), of a grant of the sain( nature, he the only in>taiiee of the grant of that ojhee. or whether it has heeii !i-nally granted ii the same, or am . and what, diffeieiit manner, and '.iiider wh.it seal, and \Jiether geiK rally, or for life, or- at pleasiU'e. 1). IUder. Fehruary 'JH, IT-'^fi. J. Stiiange. ^^/^r/r. - \\ iieiher the great seal ^A' the province, or island, should not Ne allixed to evei\ aet of "overnmciit, that requirt'H a seal, notwithstjuidiiig it ma\ ha\e heeii -iri or THE COLONIAL CONSTITUTIONS. 247 til.. (Mistoni to iii)p„i„t certain officers, and to issue pro- clamations, under the governor's private seal at arms ? We liave perused the copy of my Lord IIowc-'s ccm- ■n.ss.uu, and Mr. Popp:,'s answer of the 'iTth inst. to "•u- I.tter, .lesirino- some furth-r information, and which we have returned, annexed to tla' case. _ And as to the first <.,u,n; we observe, that there !>■ no part of the commi.s.sicm that o.i^ cs mv Lord Howe ^M-wcrto^^rant t lie office in .(uestion. the onl. chinse ^vllH■h we r:,n fin.i relating to ^r,,,„tin,^- offices extending ""'•' *'» .)'"l'"''i='l <^"i'M-S and the ministerial ones attend"- nig ui-on thru,. But supposing a power in the Governor to grant (1„. ,,ffir,. iu ,pu.4i<.u, we think the seal to be u>ed upon th.K ocvanon ought i .gularlv to be the -.reat sci.l : but if th.rr n.^.r was any grant otherwise "than ■ niHh.- the seal a. :u.u.s of the Covrnor. an.l that has l"'ther such like offices, such us.ge may .lisp..n.>""''■'■ ame into consideration, and iiave heard conn- ed for. and i)gi>i'i!*t. the said "a(!t for the bett»'r a.^certain- ing the imniber of members to be choHen for tlie several OP THE COLONIAL CONSTITUTIONS. 249 countie.. within this province, to sit in general assemhly and ior estabhshing a more equal representation of all HiN Majesty's subjects, in the house of burgesses " Al though tlie Governor of ]Vorth Carolina may certainly prorogue the Assembly, to meet at such place, and tin.e :i.s he shall see proper, and although it has not been made out sufficiently to our satisfaction, that the pre- sence of a majority of the whole Assembl- is absolutely necessary to the doing business, as alleged W the peti- tioners against the said last mentioned act ;" vet th.-se two acts appear t<. have passed, by management. 'preci- I'ltnt.on, and surprise, ^^hen very few members w.re Prcsen and are of such nature, and tc-ndency, an,l I,ave Micl, ellects and operation, that the Cnvrnor l,^ his i,, ^tru,.t,ons, ought not to have assented to th^u;, thou.-h *l'ey had passed deliberately in a full A^s.n^Uv ■ .,n,I we are of opinion, that they are not p.op.r to ).,' ,;„,. iirmed. Docend,or 1, 1750. ^_ jvj,,,^^^^^. m m 111 II (10.) 7^. ojunion of tlu Chi.j-,h,.tlre Jfon-i,, of New ^orl; on the question, uMu r fh. rhanye of oL ('^>nn,nr woulf dl^^olre the A-s-.^yM/. V..rc.-Whether a Governor publishing a eomnn-ssi '^'i)-"nnnen. ; or whether (be publication of surh '"•^^ <'omnussi.,n, does .^,,v. t.rio .lissolve au assnnbly ■Ho ch..sc.„, n<.twithstftmling surh conli.uian. e '/ n \l I f ll^ ccmtinuo the coroners : he say« not. that a co- roner is not made by commi.ssion, but by writ, and when lie is elected by writ, this is returnetl into the chanccrv, ii'Kl is a judicial act of record; and th.ivtorc, when the Khig dies, he shall remain, whereas all luanuer of coui- ixissions cease by the (h-mise of the King, as comniis- siohs of justices ct A//>v mo,//, but judicial acts remain i, sTlv IMAGE EVALUATION TEST TARGET (MT-3) -^ // // % 4? . i: ■5. 252 OPINIONS OF EMINENT LAWYERS. and .so a coroner .shall remain, till removed by the King'.s writ {Cate-sh,/). But knight of the shire shall cease, when the parliament ceases, by demi.se of the Kiiijr. or otherwi.se, ratio videtur, becou.se the p.vrliament cJiises by it, contrary of coroners— that is, where the whole ceases, the constituent parts must also cease. It was an a-reed point, that on the demi.se of the Kin- the parliament was determined, though they do not tell us the reason why ; but that we have, in th.- •'pii'ion i.f the judges in Sir Henry Vane's case, viz :— every parliament i;, called to consult with the person of the King who calls it, and therefore, upon his (icatli. it is (leterniined; for they can no longer consult with him, for which end they were called. KeJijyn's Uen f l:>. ^' Til is ^hows why the demi.se of the King dissolves tiie I>arh;niK'iil ; but the rea.son is not the same on thedeter- iiuning thi- commission of a Gov'ernor ; foraseverv par- liiiMii'iit. cilled to considt with the person of the King \\linciill> it, inu.st determine upon tlie demi.se of such King. ;,i„| v\,'yy a.ssembiy here being called to a.ssi.-t oui- ( ;il.tiiiii-(;riieral, and Oovernor-in-Chief of our province, ^'•■/\\\ g.p.ial as,senibiy, &c., though it di.s.s(,lve on the diiuis,. .,1 tlu' King, in whose name the writ i.ssued, the (i"s,.|::or l.cing not longer our Cfovernor, that i>^ the !'--- ,lvn,„vasl ,: ,"" ':■':'''■">'-"'■ ™i bo with the,,,, (,;,' lll>-(i\(. ,111 ;i>iS(>tll ill' .. . *l 1 • ' '.lie to ■ ■■-■•-^.-:.::::i::;;:;;;.:,;;:;r''?' -"-■t,:;:::;?;:::,,:;:"; '--■■■••■' 'i.at ' MM-tlM- |.,Hl.,niM'Mt .lis,-,Ml(il,„o,l ,„,,, .,,, """I ll,aveshown, a„,l, ,|,at ,hev .lo ■" ". •■'•'■" ""• •l'-.,.nnina,i ,■ ,, ,:„v,.,„or., ;;"::;--'■;". "" i-"'- „,„ , , "; lii If 254 OPINIOr^ OP EMINENT LAWYERS. that judicial acts of record I'emain. If, then, tlie death, removal, or determination, of a Governor's commission does not affect this province and tlie as.semhly in the same manner that the demise of the King doth, tlion it will follow, that an assembly regularly idiosen, and re- turned into the chancery here, is such a judicial act of record as will remain, notwithstanding the determina- tion of the Governor's ct)mmiKsion, or such death, or re- moval, of a Governor. That the death or removal nf a Governor has not that effect, is agreed on all hands, for thui does not de- termine his own commission, a Lieutenant-Governor, or President of the Council, being directed and enal)led to execute the powers of it; so that the matter nuitt rest solely on the deternnnation 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 a.sscmbly. Fir-^t, the determination of the Governors j)atent does not determine the office of any person holding by patent under tlie great seal of Kng- liind. beciuise such officer holds his oHice by the same autlu)rity that the (Jovernor hohls his; and if it can l)e supposed that the (h'tenuining of one ])ateiit can deter- mine another indepeiKk'nt on it, the deteniiiiiiiig any other palciit in the government, may e•■ "I a King would do, in the determining of officer ' ■ Jl 11 f. 256 OPINIONS OF EMINENT LAWYERS. and commissicns, which is the less thing, — a foriiori. it cannot aftect it so as to make a judicial act not to oper- ate, i. e. to dissolve an Assembly, Avhich is the greater. I shall, therefore, lay it down as a true jwsition in law : that every judicial act of record remains, iiotwithstand- ing the death or removal of a Governor, or determhia- tion of the powers by which he acts ; an As^ en\bly, chose by virtue of the King's writs, and the returns made into the chancery or oftice here, is a judicial fi^^t of record ; therefore, an Assembly so chose, &c., remains, notwithstiuiding the determination of the Cfovernor's patent. 4 K P. When any question ari ^es here, concerning a Gover- nor, or assembly, many are ready to ask what the King or parliament of f]iigland does on a like occasion : vainl_y thinking, that w'aatever is done by a King or parliament, is tit to ])e drawn into exam |)le for this ]diice. However extensive that notion may be in America, it is rather to lie laughed at than argued with ; not but that the wi.sdom and regularity of a British parliament are very lit patterns, so far ns they are imitable by us. But, a.s my Lord Vaugl an observes, under title process into Wales, when the (( lestion is of the jr.ri.-dictiou in a dominion or territ<)ry belonging to England, the way to determine it, is to examine the law in dominions, the same, in spec!*', with that concerning which the cpies- ti(m is. So "the fpicstion being here concerning mu as- send)ly, and whether it is di.ssohed )»y tlie determining the powL'-s of a Governo(*'.<^ conunission, the u)i\ (o dc ternune it is, not to examine how fir a King jukI (iov- ernor, or a j>ariiament of England, iuid an iis-en«bly of this pro'.ince, are alike, I)ut Ui inrpiire ii to the |inu'tice of dependent donnnlons. like oiirseht-s, such as hi'l.ind. OP THE COLOWrxt, COITOTlTUTIOJVS. 257 and the plantations; and if we find the determination of he commissions in those places never was thouWit o 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 al^ or the .Great- est part of the Queen's reign, under a succession o? sev- oral deputies. In Barbadoes where by a law of that isl.nd their Assemblies are annual, I am informed it has been very common to act with an assembly cliosen in the time of a former Governor: it has been done in Vir-inia in Maryland while under the King, in Pennsvlvania, ^ay It has been done in this province, for Colonel Fletcher (.H-,stly styled the gre-it patron of the Church here ) met and acted with an assembly summoned by Colonel Houghter. And upon debate of this very' question winch was started by some of the members of the then' assem},ly, ,t was the opinion of himself and council „^. mine contradieenM and of t'^e Assembly, thi-t it was a legal assembly, as you will see by tb • i.mrn.ds, if "you please to inspect them. These journals were sent home and I am apt t., l>elieve the opinion and ])nutice were approved of, otherwise the Governor woul.j have been reprimanded, and the suecee.ling Governors lo.bid the •loMig so, nothing like which has been done; mu.I the Karl of Ballamont, who succeeded him, was so 11,,- Ji„ui thinking that the as.sembly was dissolved bv his p„|,. lisbiug the King's patent, that (if 1 am righth i„j;,,,n- • ■-l) he published a prcM-laniation to dissolve the Assem- bly rhosen in the time of Colonel Kietclier. So (bat tb.' opini.m of an Assembly's dissolution, bv t.ie publisli- i"g a new patient, is but of l,,te date. au.M am hu:riblv «>f opinion, without any f(mndafiv)n in law. U Lewi.-- AIohkis. 258 OPINIONS OF EMINENT LAWYERS. M (11.) T/ie opinion of Mr. Hamilton, an eminent law- yer of Pennsylvania, on the same -nihject. [Coy.y of a letter to Dr. Johnston, one of the council for the proyince of Ne^v 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 succeeding Governor to meet and act with an assembly called by his pi'edeces- sor ; and, upon the whole, it appears to be thus : First, I find it io be thf practice of several of the govern- ments under the Crown, to meet the same assemblies called by their predecessor. I also find the justices and judges, appoin*^ed by the former Governor, continue to act by the same connnissioa under a succeeding Gover- nor, and that their commissions are never renewed, but when the Governor thinks fit to make some change in the magistracy. Tliirdly, that no military .officer re- ceives any new commission from a succeeding Governor. Tliese things I know to be factw ; and the reason then must be because the writs and commissions Ijy which the persons are called or coinn issionated, are the King's writs and connnissions, and not the Governor's that grants them. These considerations, witli the practice of Irelantices, the chief Baron and the King's learned comisel," in 4th Coke's Institutes, fol. 353. Ileylin, in his Cosmography, says the Lord-Li eutv^n- ant summons a parlijxraent by the King's api)oi,ilniont. Collier's Historical Dictionary says the Loid-Liouten- ant calls and holds the parliament of Ireland by the King's licence. The present state of Great Britain, pul)lished in the year 1718, the fourth edition, title Ireland, page 58, says the parliament m at the King of England's ple.isur ' called by the Lord-Lien fenant, or deputy, and by him dissolved. That the test of the writ is in the Lord- Lieutenant's name, appears from the historv of that country and the book called the History of the Reduc- tion of Ireland, That it uiust be so, appears from the form of the sum- mons made by a guardian of England in the Kings al)- 8encc, for calling a i)arliament, 4th Coke's Institutes, lol. (;, at the lii the 29th of November, he prorogued the parlia- ment to the Gth of May next, and returns to Britain. In Octolter, lTf>'<, the Lord Wharton is made Lord-Lieu- tenant, in the . .m of Pembrooke ; and April the 2l8t, arrives at Dul)lin, and then prorogues the parliament, then in being, to the 5th of May following, at which day it meets ; and it appears in the speech of the commons, that tliat parliaiuent had held many sessions before, so it was not one of his Cidling. On the 30th of August, 170'.>, the patliament is prorogued to the 13th of March. On the i;)th of May, the Lord-Lieutenant, who had been over in Britain, returns, meets the same parliament and orders the clioosing of a new speaker, in nxjin of Allen Broderick, wlio was call'}d up to the house of Lords as chief justice of the King's Bench in Ireland, to give his a.ssistance there. August the 28th, the parliament was prorogued to the 8th of March next, and the Lord-Lieutenant gocfl for Britain. July, 1711, the Duke of Ormond appoint- ed Lonl-I^ifutenant and arrives at Dublin, and meets the Hiii.ie parlianifut the Sth of July. NovemlxT, 1711, OF THE COLONIAL CONSTITUTIONS, 261 parliament prorogued to the 2d of September, 1712 and goes for England. ' This is history of matters of fjict, hy which it ap- pear.« that the removal of a Lord-Lieutenant or Gover- nor who tests a writ of summons for a parliament or an as.«embly in his own name, neither does nor ought to dissolve that parliament, or assembly. These are the grounds of my judgment for the legali- ty of the present assembly meeting the Governor. I have spent as much time as my private aflairs would permit, m 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, un- less the people say that it ia striking at tboir privilege, in denying them the opportunity of a new choice, and this is fully answered by the arguments in favor of the septennial bill. beptember 27, 1720. (12.) Mr. Fane\H ajyinioti on the nature of the hond to he given hy the Governor.^ of Proprietary Ooremment-^, f-yr ofmrving tlie Act-s of Trade. To the Right Hon., the Lords Commissioners for Trade and Plantations. My Lords ; In obedience to your Lordships' cmimands, signified to mo by Mr. PoppIVs letter of the 14th of this instant, wherein your Lordships are pleased to desire iny opinion i>': * f 1 1 ^■. 262 OPINIONS OP EMINENT LAWYERS. in point of law whether in obligations which are made to the King's Majesty, the word exceutorihvs, or sxcccs^or^ ibuSj ought to be made use of. The act of the oo>V THE COLONIAL CONST ITUTIONS. 263 Lieutenant-Governor, Captain Norton, may be indicted .Hid tried in the court of ^he King's Bench, by virtue of the act for punishing governors of phintations for offen- ces conimitted by them in the plantations ; but we doubt whether he AviU incur the penalty of one thousand pounds by the act, made the 7th and 8th of the King, lor I'egulating abuses in the plantjition trade ; for the u-ords of the act extend to Governors and Comn^anders- .n-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. Thos. Trevor. •'""'^i' I'^J' Jo. Hawles. ^S'erom/. Of the Council. (1.) The ojmnonofikc Attorney ami SAicilor-Gcneral, Marriuj and Lloyd, in 1755. on the question ichcther tfi^ Governor and Council have tlie power of maJdng lairs. To the Right Honorable the Lords Commissioners 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 whether the Governor and Council of His Majesty's province of Nova Scotia liave a po er of enacting laws within the said province, mid .fonatl.an Belchier, Esq. having transmitted t^ your Lordships his observations thereupon, enclosing to us a ;M)py of the .said observations, together with cop- ies of several clauses in the com..iission and instructions of the said Governor of that province referred to, (all wiiieh are herewith returned), and desiring our opinion 264 OPINKVNS' OP BMINEJCT LAWTEHJ!. ivhethor the said (rovernor .md council have, or have not, iv power to enact laws for the public peace, welfi're and ji.Kxl jj;overnnieut of the said province and the \,eo- ple and inlialjl^^ants thereof : we have Uiken the said ob- -oivations ami clauses into our consideration, and are huniblv of opinion that the Governor and council ahme are not authorized by Ilis Majesty to make laws. Till there can be an assembly, His iMajesty hits ordered the government of tlie intiint colony t« be pmsuant to his conin)ission and instiiictions, and sucli further directions as he shdidd give under his sign manual or by order in council. W. MVRRAY. April 2t>, 17')'). Rhii. Li.oyd. is (2.) T/n opinion of the Attoruey-Oevpml Piuttt, on thf .^(-nnil poinrs of the Council and A-s-nrnhh/ of MiinihiiiiJ . As fo the nomination of officers by the lower house. In iiiv opiiiiou the sole nomination of those commis- sioners who are new othcers, appointecl l»y tins hill, be- longs neither to the pmprietary, nor the lower hou.se; bet, like all "thcr regidations, nnist be aAsenti*d to by both, but can l-e clniiu-d by n.-ith« r. The proprietary's charier entitles him to nominate all constitutional olli- cers aufl all others which h\ the laws are not otherwise provided for; b\it I -s. and dn..s not encroach upon .ny of th.. proprie- tary's ri;;hts. ' 11- As t.. the .luties rccpdred from I.ord IJaK In. ore's pri- vate ollicers, his agent and receiver. Here my Lonl ought to interpose, for it is a great in- 'lignity to , ompel his Lnrdship's agc.„ts into I p„hli,. servic,. without making them a liberal allowance and cniupcMi-^ation lor their tnMible. As to that re.piired frcm sheiins. This my Lonl will leavr to be debated I. lie two liou>es. .\- to the power of the upper h.Mise I, evamine claims .iihI accounts. The upper hou.^e are right in ma'iug a staiul |o this ' l.nise in the bill, and should take .are how thev „.lmit ■•ii'inMchmentsonbis kii.d, uJM-u Ih.y ai,' .support.-.! I.y argiuu.'uts drawn Ir-.m ihe e\.-ruts and im|H)rts. The u|)i)cr huusf are clearly right in that jwirt of the objection which relates to Hritisli miTchandise iini>orted; for 1 am -itisficd thr iiiotbcr i-omitry will never eudnre such au iiii|io-.t upon their trade. The province may \> the -ame rule prohibit the iM\portatioii, as well as thev iiia\ tax the inerehaiidise imported; and it semns to be a very im\van.iutal)h' atfemi»t, to make the Eng- lish importer of ixoods carried to Maryland in the way of trade, pav a I .\ foi' the (lefenee oftliat province, !or no other eoiisjil,. ration Imt the liberty ot" trailing there to which thc\ ha\e an original I'ight, which cannot l)c inv ided, ilimiiii^^hed, or even icgulated, by any thing this pro\ iiice <'aii ever do, A.-, to the tax o!) tenants i'-r life My L'.rd will le.uc thl< to be .^'tllcd b the two liouses. OP THE COLONIAL COr^fSTITUTIONS. 267 As to the tiix on uncultivated lands. ThiH seems to me a \ery n„rea.sonable tax, and ought to Uo resisted by the proprietory, because it seems prin- cipality to be h'velled at his estate. As to the tax on plate and ready money. My Lord iias nothing to do with this. A-< U) the tax on the Governor. This is rather an uncivil, than unjust tax ; and there- fore, the upper house would do well to oppose !t as far as tiiey may in reason. Having given my sense on each of the .,l,jections so r-( hill - Till, Jhiikil and Yurie, how far the pnxlamalion of D^arti'd laiv .^m.-^pends the finu'tiona 1/ thr^ Coiimil. To the IJij^lit Iloiiorahle tho Lords Coininissioner.s lor Trade and Plantations. May it ])k'as(' your Lordships; Ti' inirs.iaure of your Lordships' commands, sij^nifiod to us 1)V Mr. I'ownall, in his k-ttor of the 22d instant, jicciuaintinj; us that yoiu- lordships had recoivod two let- ters from Henry Moore Ks(p, Lieutenant (Governor of Jamaiea, infoi-niinf; your Lordships tliat he had, in eon- seiiuenee of adviet-s wliirh l.e hail reci'ived i>f an intend- ed invasion of that ishuid, eau-l,\ had any rijjiht to sit or transaet husiness after the imKlii atimi of mai'tial law ; and also tiansmit- tirigto us cojiii's of llie Lirulvnant-dovei-uor's letters and two other papers, containing' the reasons assiii;ncd hy the ■ MUiil I'll- tl:eii- npiiiii'U, and tiieiv answeis tn si've- ral i|i. rations iirdpnunded tn them liy the Lieutenaut- (ii)\ eiiior. and desirim: us to take the same iiiti> our eoii- sideialii'U ami report to \ our liHiilships our ooiinon thereon: we h:i\e taken tliev;niie into nui' eunsidera- (ioii, and are I'f niiiuiuu thai theix" is no louudatmu tnr the j.otinn of the emmiil thai tii'- |)ioehiimiui: nf :;iiii- ti.il law >n~|>enil~ tile execution of the le^ishiti\ e autliDl- itv wliii'li max, and ouiiht ti> continue t" act as \in\)i as the luiMii- exim'iicies rcipiire. Niif do we ap|trehen 1 that hy su(di proclamation of PF THE COLONIAL C0\-;t1TUTI0NS. 269 iHiutuil la.w the ordinary course of luw and justice is sus- pended ..r sto,)ped any furtlier than i. ahsolutoly neces- ■suv to answer the then military service of the puhlic and the exigencies of the province. T >^ , ItoiiT. JIknlev. 'liin. 28, 17;)7. (. v^ ' '" b. lOKKE. 'Hun/. Of tlie nqyresentative AmmlJii. (1.) Theopiuum of the AUor,u,j. ass,.,„Mv in New •''■'•^<\v, m such manner as Mr. Hurnct, His Majesty's '■'-•■'■'""•. 'I'"- says in his letter would he for His Mlij- "-<.vs -rvH-e. a. 1 in what manner i, nd-d.t he n.cit ';;"'"'''^ •'"•'- (fnr whi.h purpo... ,1.„ ...,,a..tof Mr """;";':■""'•""•"'- p.in(..ds, .h to .i..., ...,„,,, ;;' ^^':'';^^'''-"'"^'-'-inof hMn.,ru..,i.,„and ;'"•'":"■"-'— Hha. col,, V, were s..n, ,..„,., , „, ■-■-"h sent l.a..kt., your lordship.), I h.ve readover •■-■-'-tract ofMr.nurnetfsh.,„.r, hi. sp..,.,, and I MC Met o) a'^«(M!Hll\- tjlllii 1 1 ! . .' »MU.i> Mipp...„.d lo h,.,v.. Imvu passed in ''"III l'i'\ r ac(> s tiuic in V<.ii- I ... '"' '"•• '"'• '•^'Kulatingthe.iuulilicatiou of represenbi- 270 OPINIONS OF EMINENT LAWYERS. tives, to serve in the j^^neral assembly, in the |).;)viiice of New Jersey ;" and considered tliercijf. And I certify your lordships, that as the riv;ht (.i'send- ing representatives to the assembly unt'(l by Lord Lovelace, it beinu an act ,n- trarv to tbe in^tiaict ions, and ue\cr :ip|ii'o\(d I'v llie Crown, seems to me void, wlii< h Mr. I'mniett li,i- oli- served ni bis letter. Therefore, upon tlic wliole matter, I apprehend His Majesty may in jHiint of law coin[)iy with Mr Burnetts re(piest. ill cmpoweiing tiie new county of Hunterton to send two r»'preseiitati\ (■<. and restrain the town of Salem fnmi bending any npiescn- OK THE COLONIM. CONSTITUTIONS. ' 271 tntiv(>s for tlio ftiture, if it shall be his royal pleasure so to do; and Iho Tiianncr whereby it may be don.-, I con- ceive, n.n.N- be by Hi.s Majesty sending his Governor tlicre new instructions for that purpose. KoB. Raymond. Sept. IG, 1723. (2.) Th opinion of He Attorney and Solkitor-Gen- eral. li.,,l,_rjn,d ^[urn(J^ iq>o>i the is-sNauj of ivrits fo?- (7uio.^-i/i,/ inic rqyresentatlve-s. To (he Itio-ht Honorable the Lords Commissioners of Trade roid Plantations. Miiy ii please your Lordsliips ; In pursuance of your Lordships^ desire, signified to us In Mr. IJdl, in his letter^ of the 10th of June instant, vcpivsentin- tiiat your Lordships having latelv received H letter IVoni William Popple E.q. Ili.s Majesty's Gover- nor of (bo 15.rnn.da Islands, dated the 10th of February In^trclatiug. among other things, to having, upon the a-, nibly-s ne.ulccting to meet at a certain time, to which tb.y were adjourned, issued writs for the electing new r.'piv.cnt.Kivc^, without the dis.solution of the assembly; ■I'ld trauHuittPig an extract of so nuich of the said let- tor, and ..^pirsof .s,,.!, papers therewith transmitted, as relate (,, \UU pro.vc.liug ; au-l doiriug our opinion, wli .lb r (b.'>,-,id governor, when the .^pcak.-r and all the' members of (be a.^scmbly neglected to nu-et at the time to wbl.b Ib.y were adjournal, on tb.- oth day of Feb- ruary, in (!„• .Hcrning, errhi h>gally i.^sue'urils for choosing new n-pre^eutatives. witlioii di.s.solvjng that a88ombly; and. wh.'tlu'r the representatives, ehose hv 272 OF THK COLONIAL CONSTITUTIONS. virtue of such writ^, issued as aforesaid by the Governor without a dissohitiun of the assembly, will constitute a legal assembly, so as to make the proceeiings of such assembly valitl : wo have taken the said papers into con- sideration, and are of opinion, that n'-'ther the assembly was dissolved, nor did the members lose their scats ])y their not meeting at twelve o'clock on the otli of Feb- ruary, 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 u])(in the foot of any supposed dissolution, but to supply vacancies that had not happened, we are of opinion, the members so returned on tliose writs were unduly chosen, and cannot coustit\itc or sit as a legal assemt)ly. D. Ryder. June 18, 1748. W. Ml RRAY (3.) The opinion of the same lawi/ers, , /i the right of the Crown to c„le the Lords Commissioners for Trade and Pbiiiiations. Mav it ])U'as(' your Lordships ; In pursuance to your Lordships' desire, signifu'd to u< by Mr. Hill, in bis U'tter of the 22d of ,Tauu;iry. l7 1li-7, representing tli;it _\..ur Lordsliips having received a let- ter iVoni Heiuiii - Wrntworth, Ksbire. in wliiidi he iie.|ninnts yonr T>onMr,p- tliMi the isssembly of that province liave re- fnsed to adinil I If representatives of five towns iind di- tri<-ts. (to vJii.ii be bad issued writ-; in lli< Majesty's „;,,ne t . eleel and send nu-mbers to tbe asse;iiMy ) to sit and vote in the choice of a speaker, and tliat Mr. Hdl r I OF THE COLONIAL CONSTITUTIONS. i.s directed by your Lordships to enclose to us an extract ».lso nmch of the said letter as relates thereto, as also papers therewith transmitted, containing an account of the assembly's proceedings in this affiiir, and a coj.y of the twenty-eighth article of His Majesty's instructions to Mr. Wentvvorth, which relates to the settling of townships, (all which are herewith returned,) and to desire our opinion concerning this matter, and what may be i)roper for His Majesty to do therein. We have taken the same into consideration, and are of opinion lliat as the right of sending representatives to the as- sembly was founded originally on the commissions and instructions given by the Crown to the Governors of New Hampshire, His Ma.jesty lawfully may extend the privilege of sending representatives, to such new towns as His Majesty shall judge to be in all respects worthy thereof Wo therefore humbly submit, that it mav be advisa- ble for His Majesty to send positive instructions to the (.overno'- to diss.dvo the assembly as so„u as conveni- ently may be, and, when another is called, to send writs to the said towns to elect representntives and support tile lights of such representatives when d losen. M UTJI 1^, irr I). KvnER. \V. Ml URAV, (1.) J//'. l'(tii<\s Opinion ON //h s(I»I) point. ■f..tlieKight H.morable. the Lords Cminiissioners U Tr.ide and IMantations. M.iy it ph'a.Mf you,- Lurd.^hips; l.M.bedi^.iuv toyour Lord>iiip.s (.Mumands. signified '" ».e by Mr. (Jellibrau.l, desiring my opinion nn the matters contained in the extract of a letter from Mr 3H 274 (.PINIONS OF EMINENT LAWYERS. Mm Woiitwditli. His Miijcsty's (lovcnior of New Hampshire, and ill scvx'i'al dtlKM- pjipovs ivlatin;;- to ilie ])ro('ir(liiii!;» of tho asM>iiil)ly of that province. I havo careliiUy read over the said cxtrMct of Mr. Wontw-ortlfs Uvtcr; the clausi' in the I'diuiiii^sidii of .lolm ('iitfs, K-i(j., dated the 8th vliiy ol Septeiiilier. in the ."list year of Kini;- CharU's tlie Secniid. j-eiiitiiit;' tn tl' ' ciiUinu- tlie asseiiiMy of the .vaid pr<)\inee' the eliiii^-e in the eomniission of Samuel Allen. !•]-((.. (ioNcnior of llie said province, in the rei,2;n of Kini;' \\ illiaiii and <>neeii Mary, relatinir to th(> siiifl asseiuhh- : llic oSth cuuise ef the in.-^triietions jiiveii tt) the said (idxcrnor Wentworth in the year 17-11; the copy of His Maii'st\'s writ hy which the assemhly of the said province \va>: eoineiied, a.id the sherilV's return thereon : and the ('Opy of the ]>rooeedin.!:s of the .said iisseinhl\ from the -1th day of .liinuary, 1744, to the 2!Uh of the same inontli inchisi\e. which were sent to me, and aix' herewith returned to your Lordships. And I lieu, lea\'e to cihserve to your Lordshi])S, that, as tlie riiiht of si'ndinu; memhevs to the ireneral assemhly of the said province appears to me to l)e originally Ibunded on the said coiiimission to the .'f fla ( 'ouncil of said prnvince. hy which commission, ;;s W(dl the ]H-rsnns who are to choose siadi deputies, as tht- time and place of their ineetinu-. are left to the di^cretiiai of the said Pr'/sident and Council : and as h\ the co.nmissioii i;ranti'd l)y Kiui;- William and Queen .Ma r\ to Samuel Allen, Ks(|. to he (iovernor and ("ominander-in Chief ot (he said {"roviiut , the asseml)l_\ of the freeholders thereof 1:^ directed to he calleil in such manner and form a- the --aid (iovernor, I»_\ the advice »)f the Couiicil. shall lind mos. t-onvenient for His Ma- jesty's service, which powers of the said Governor and OF T)IE COLONIAL CONSTITUTIONS 275 ('oinicil do not !•»■ iihiiika-d, J ippc'ur to iju" to liiivc! hcen taken away (. ouiiri 1 oi'tl Hi Si 1111 oi" o])inioii that the ( lid m jovornor and M province, lor the time heinljerifl" of tl province to mnke out precepts, to he directed ie sa; towns, ])arishes and districts, within tl tl le siinie, as le siiid Governor and ( tliem to ekn-t and send ouncil fit hall think lit to such they, I'oquinng present such tonus, parishes and district persons, duly (pialilied to re- in tl assenioh- o 1" tin le ii'c iieral e said pro\ iiice And it likewise :i])pe;irs to -ne. that dents otlered l)v tl tl le s(>\(.rid :ie assenil)l\- oi' the ])rece- ai(J sii pport of the riirhts I pio\ nice, in tein,!:- 'u the said house court, to i^rant the jirivileir,. to t oi' general rep resent.'! lives to sit in tl »^vlls (,r ]);irishes, to send ^uUiciently prove or iiiiike nut such a ridit H' ,ii-eiier;il Mssend)ly, do not most of them 1)0111^' eases, where such riirh^ jesty's charter, jind conlinned assented to hv the (Jovei i-as -lantcd liy Ilis iMa- hy act of th.' assemhlv. nor and couii.il ; and anv mod- •■ni insti.nce of the Mssemhly ah.ne t:ikiu,o(.n themsel to firant such a |)riviIeo(., apj croiichnient on J lis AJiijest ves leiiiiu;^- to Die ;, lii^h en- iiianilestly to vest the u hoi nice in the y:enei';il court, or I A |est\ s prci'oo;,ti\ c. a e iro\ ml tending eriniicnt of (he prov- Ano, as it is represented in (i louse o, re|)resentati\es. h'tter thiit the live t ovenior Wentwortl owns, or district^, thri IS em niention- <'d, pay neiir onc-lifth piirt of th to me that the said ( I' pio\ inciid tax, it sec ms >o\ernor aclcd in^.: the said towns to idcct and si^iul the f,a'iieral assemhlv; and that tl >i'opci'ly. in direct- ;cpre-cii'atives to od arhitrarily and '•cfore tluy procec<|(.,| to the v\ c assemlfly have act- iilen'aily in ( xchtdiii!.'- smdi memhers loice of a IV licakciv d. in (>rdcr that \\n douht mav tl. ,i.i remain concerning ■al pleasure so to do, to make some new estaijlish- ment concerning such elections, which, I conceive, may be done bv sending instructions to the Governor of the said province, there1)y empowering the said towns, !uid districts, and also any other new townships to be settled within the said province, pursuant to the afore- said article, under such restrictions as His Majesty in his royal wisdom shall think fit, to choose and send re- presentatives to sit in the said assembly, or general court, and directing the i-aid Governor to issue proper writs and precepts for that purposi.v which instructions. I am of o})ini()n. His Majesty, in casr he shall so think lit, mav accordingly send to the said Governor lawfully and consistentlv with the constitution of the said province. Fran. Fane. July 1, ITfti. (.").) 77/r opinion of the Attotntii .nid SoUsty"< subjects, in the house of burgesses " rni 1,1.. ..("^^Klo loiir ..-ntu f.irtVi thnf tile lldlilbit- f OP THE COLONIAL CONSTITUTIONS. nnts of the several Jiorthern counties lind assumed to themselves the privilege of choosing live peisons to re- present them in general assembly, without any pretence for such claim, while those of the southern and western counties, who are more numerous, and contril)ute much mo:e tt) the general tax, were represented only by two members, which irregularity had been attended with 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 Com- missioners 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 northern pre- cuicts or counties of Chowan, Perquimans, Pasquotank, Currituck, Berty and Tyrrell, complaining of the said (fovernor, of having passed tlu^ said act in an illegal, improper way, and praying to be reinstated in their just rights and privileges. This petition having been reterred Iiy His Majesty to the Lords of the committee of Council, was, by their Lordships, referred to the Board of TVade to consider tlioreof and report their op.nion upon it. Tpoii a hear-ng before the Lords Commissioners tbr Tia-li' Mild -'Mntations, of the petitioners, inconsequence of the said reference, and it appealing that they were nof 'ible to prove the allegations of their |K'tition for want of evidence, their Lordships made a report U^ the Lords of the comnxittee of Council, and submitted, whether it would not be jumper that orders should be given to admit the petitioners to examine witnessew iu 278 oriMONs or kminknt l.awvers. It tlu' pnuiiice ill Mippmt of the pctiti"!!, ;is also to iillow the liki' liluTty to the (iov(M'nor. lo cxaiiiiiic wiiiu'sscs on liis pait. and to direct him to rt'tuni his answer to the coiiiphiiiits ronta, lud in tlie >;!id ],<'tition. ami lo transmit cojiic- oi the mimites oi' the ueni'i-al assemMv, and ci'slicli oliier |ia|ii'i's as uii,:ilit he neees^ai'V lor His Majest\ s rull inloi'Miatiou in thi.< all'air. In eonsei|nenre of tiiis leport, the Lords of the eoin- mittee of (':iiniiii were pleased to direct, ■• tiiat a eopy of the >.iid petition ,.1' coin|)laint sli.udd he iransmille(l to (ia!)riel John .on. Ivi|.. (io\ernoi' oi' the -aid pio- vinet'. iiMpiirinu him to relnrn his anwer tiier* nnto in writing' w it h all coinenieiit .-peed: and that iheeom- plainanl- . I'l- tiieir ai:eiit-, >honld U^al lilieil\ to lake copies )!' all r( curds, i;i anv of the pnlilic ollice- in the s.iid pro\ inc.', loiichiii.t;' tin' m.ittei"- ( onipl lined oi. as tlu' said coiiijilainaio -, oi' I heir agents, slioidd lidnk ne- cessary tosn|ii'oil lli(-;!id pe* it ion of eiim|ilanil : and that the >«me -iionld iic deli\en'd to ihc '•oiiiplaoiants, or their auciit". i^^ned ami ant lieiit icateil in t i.e n-iial maniici- under the >e;;i ( I IIk jiio\ ince, upon pax ii'Li tho usual lee- I'lir the -niie; ami that Tree I'lierts -iioiild l(i> als()i:i\eii to all -mdi per.-ons .a- the-.iid ( oiupiainant-. or their a^ivnts. .-hunld name, as also i ■, all .-iich pcrMHis a> the -aid (loNernor sin.iild name, ti make alilihis it-- he- lore the ("hief .lu-tiee and .lnd;.e of the (' .int ol' .\d- nii;ali\ o. .-aid pid\ ince. or either ol' thein. ol wliat the\ knew lonehinii- the pieuiines, pju'tieiilarly ns t^) the prat : ice ol the .-aid provinee with ivijiud to n nuijority oi'thc a.xst'iubly hoin^ present iH-lore mii\ hii-inoss iMiuld Ite prooi't'di'il upnii. and likewise with roj^ui'^l lo the uinnher of re | » rest- nUi lives sent by eu» h o| the nortliorn eounlies to the ^enenil HHsemhh IVoni the \ear hi'.'i'p to OK THE COLOMAT, ( O.NhTITITIONs. 279 tli.'.vi.u- iTMi; .Mndtlw-.t smHi ("ln..f .Fu.ti.v, or Judge of Hit' -v.hnirnlt.v Cnurt. ,.r citluT ..f tlicii. .sl.ouM smn- ",.. whirh .!... said (iov.TUor was l„,.i..„iiy to the said ChiHMu.ti.H. anulh> alter the ,ec,.ipt of the sod/ader: as also th,.t ^^'"'i" "".l.v daxs alter reeeivi,,. , leh otl,e,-'s pn,o(s, tlu->:iid (iovernershnuhl ,„ |,k,. in:M,:,erex(ha,|oe with' llK'said e,,n,plai„a„|s, „r th.Mr auents. the icpliesthat >li.Md.l l,e,uadel,\ al],d:n.|,,,r,l,.p,..ll„.„s, I.eeueM.ey ^N'lv na>,H„,lt_ed.and thai the uhnh- matter l,,.,,, th. lone that I he said .a■.h•r ^l.ol.hl he ser\ ed upo„ (he said (.oven.or,,, tile pl■n^ i„ee "f North CaiMlnia; an.l that ti„ -aid ( .nv eri.or sh-uild ^'■""""'' ''"■ '" '•- "I tl'- .ueneral asManMv ..f the Niidprovinre, in Noveinh.i, 17 Ml with in, names of such meinkM-s a« were pre-enl al their lusl nieetni- Hie names of sue!, a- u ere sworn in Mllerward-. au-l llu^ whi.le numlM-r pieseni diuniu 1 li.' eontinnnnee ot that session, an.l ;,|m. attested eopies of son.e of the writs js- bUcd loreuUin;; a«»eMibliei*unUNu-Jei.t t,,.l,.. , i-«,! i_ .--___s. ,.., ,.... TITTTr ]■ ^ '• V t 280 OPINIONS OF EMINENT LAWYERS. if the same lonu had been constantly observed, nud i( thei-i' had l)een any variation in the form of those writs, tlien to send copies of such as had so varied, and also copies of the returns of such writs, together with a cop.v of tlie order (if the palatine's court, in the year lii'JG, directing live mend)ers to be chosen for the northern counties, and that the san?" should be properl_\ authen- ticated, nndi'i- the seal of the said jtrovince. and trans- mitted at tlie same time with the albrementioned proofs and dept)sitions ; whereof the said Governi-i' of N'ortli Carolina, the Chief Justice and Judge of the Adunralty Com-t, ami all others whom it nnght concern, were to take notice, and govern themselves accordingly." In roiisiM|Ucn^aid law. ami de- .sired their opinioiiw In tlier it iniuht be pioper. consiHt- rnlK with the jn-t rights of the iidi.ihitant- anro\inee. to !>e eoniuined iiy His Majesty, (»n the It of l>eeember, ITo'l, His Majesty s Altor- II UK THE COLONT I. CONSTITUTIONS. 281 I.e.- and S(.licitor-(Joiu-nil .-..[...rftMi, • that thoj had con- sHk-HMl the said ,...t and had hoard counsel for and ...gainst tho same: that, although the Governor of Nor -. Cavuhu.i nii-ht eertahily prorogue the asseinWv to me atHuii i,!,uv audtimoas ho should soo pioper ; and althoui,'' U had not hoc-n ukmIc out sulliriontlv to their •sitisfaotinu, that t he p,vson-o ofa majority ,.f the whole as^omhh- was ai,.ohit..ly nooc^.arv to tho ,h,i„.. any '"'■■nio..,:Hano^,.d I.,v tho p.!iiionorsa■••' iv n..rfhern '■"initios .•lain, of son.linu live representatives, each to theKen.,ala.>on,l.iy: l>. Th.- no.vssity „f a majority t" ••'"i-lihil • a .piorinr ,>f th.' ssse„ihly ; an.l ;5. The iiirnner In whi.di th.^ a.l i.i .pi.-iinu ua^ passed. In ..r.l.M' i..ju.|.:o„f th.. lu,. (ir-^t .,f those points, it will he n.ressary to ivv.mI Io ihat p..,i,.,| u he,, li,-t an JH.semhlywaM e.m.t.tule.l 1,, th,. ...Laiy, a„.| |., state Mii'U reKula(ion.s «;, have uoi.i time to (i,„e h.en ma.le with respect thereto, mid Uy what authonl.N th,. MXeral places, wliieh have sent members to the as"-e,uhU , l,ave l»ee:i einiMtwored >-u to do. In lT, the iiru[i; ietiirs a;. pointed Samuel Stephens Es([. to be their (iovniior ol" AUteiiiarle (.'(uuity, with a powei' of iKiuiiuatin'j; twelve persons to bi his eouneil, and to call an as-eiiil)ly ♦»(' twelve persons, to lie cho>en from amoni; the t'leeh /Iders, until the county should be divided into parislies. ilistricts, or divisions, and then eacii division, di.-trict, or parish, was io send two repre- sentatives who, with the jiovenior and council, were to form a general as>einb!y. In iCiil'.l till' |ir()[irii'tors of (^n-ohua formed a model of government I'lr the iK'tter ordering' am' riding the prov- ince, connnonly known b\ tlie name ol the fundamental constitutions of Carolina. l}y these eons'iitulions it was (hreeted that a parlia- ment should be hehl oine in eveiA two yeai>, to eim^ist, of '.he projirietoi s. (.r their (h'puties. the hiud^raxes and cassi(pies, and oni' iVeeholder out ol' evi'r\ pre- cinct. These ''nu-titutioii> iio\\c\ (•!• Weii' ne\er reeeived or ackuow leii'ed by thepeojih'; jiubin I (iH,'), Were laida>ide by the prop' i>'t<>r> them-ihe- 'I'he prop! ietor-> a<::'in. in loj'.l. Ii;(ni<'d a new set of fandaiiieiital eoii>til n( ion-, with -onie btlh' \ iiiatiou as to the succe.xsion ot' ollieei-. ami the-e wei'e >ent to tiie Governor- of tho -e\eiai ili.--trict,s in CaioUna. winrh were ih'n tliive, vi/. .\lln ii"nle. Craven ami Chirer.ddn. With !he.'iie wiit- to the four precinct."* of that eoimi\ , re(piirinu them to elect OP THE COLOMAL CONSTITUTIONS. 283 each five freeholders, to be tlieir representatives in as- seniljly, Avho were to govern tliemselves according to tlie rules laid down in the fundanimtal consti- tutions. In 1(101, Colonel Liidwell was appointe, »,o,ornor of all Carolina, with instructions from the proprietors to rail a general asseinhy to consist of twenty members, viz : For Albemarle County For Berkeley County For Colleton County For Craven County 5 5 5 5 HLr 20 And when any new county was erected, ami should make it appear fliat thciv wriv forty frc-holdors, inhaS- itants of it, to li!ive a privilege o'" sending four members to the assembly, and then the wli..lc to be reduced to four for (>a('h coin-.tw The said ri„vornor was fiirtlier directed by an ad.li- tioual iiistriirtiou. to appoint a deput\ -governor of North CuioliiiJK if he thought prop,"!-: and, if he >lionM fnid it irnpractieal.lefor .MI.em.iric ( "onnty t.. sei,,| deh -jites to til.' g.'neral asseiiihly. to din.,( Herkehy, and Colleton, to send s«'v<'ii each, and ('ra\cn six, Tiie M,- .^mitli and Ml- .\n iid.de, his siieees.v.iis in th.'gov. iiiiiirnt of ("aro- ''"■' i" ''''•'■'' an.l Ifi'lJ, fl,., 1;,||,.,- „(■ uhuin. ;it n pala- lin«' s eonit. holdcii in IC'.m;, md re,, wiit^ I,, l,e isMied ait tn (he severnl l.nvin,!- ,,f I h,' ,nmit \ .,'' Alb, uiark>, t,ir cll'r-ti lici- l'i\ 1. l.iii.,...^. .... C, 1 : ccuict ; «| ml t lie •m i t- |i ii fm ■ ■* V %S4> OPIMOx\S OF EMIiNENT LAWYERS. precinct of Painptico, without tlie limits of Albemarle to the southward, in the county of Arolulale, was erected into a county by the name of Bath, and empowered to send two menil)ers to tlie assembly. I'. ±7i'') IJath County was, Ijy an order of a coiuicil (if the proprietors' deputies, divided into three precincts, by the names tjfPamptico, Wickham and Ar'hdale, each of which were, by the said order, em{)nweied to send two members to tlie assemlily. Some tiiMC after this, the particular time not apjwar- ing, the three aforementioned counties were by the siic- CCf linji; r<()Vern(jrs ai)[)ointed by the proprictuis into four counties, l)y the names of Beaufurt, Ilyde, Ciaveu, and Carteret, each of which sent twonumlHTs to the ati.sembly ; and in IT!') two (owns were erected in (he southern district, by the name ol" Hath Town, and Kden- ton, tlie flr>t of wiiii'h w;is empnwert'd, b\- an act of the legislature, to send one luember to thi- asMMubly. In the same yi'ar iiu Met was passed in North Caro- lina, cntitK'd "an act rdaliiiL; to IIk- liii'unial ;Mid oilier a.ssemblie>," which diitn'tcd that eacli precinct in ;\ib(>- niarle county. \ ix, : Ciiowao, l'cii|uiuians. l'as((;iotaiik, '"."..I Cuii'ituck. sli(>'.'.Id send li\(' mnulicis to the li-^scm- bly. and e\ I'ry ])re''iuc* iue\ crx dtbci comil \ oi- coi; ntics then erected or theicarter to be eii'.led, to -end 1 wn : but this act wa-< repeab'd l,\ Hj; .M;i je.^ty 'ri oi'(b'i- in euuiicii, dated the LM>I day of July. \7'M. lU 17-2 a new precinct wa^. by an act of aeit\ precinct, and empowered to send fixe member^ (.) the assembly, as wa-- 'i'yeli precinct, in the \eai' IT-!'.* In 172'.' tln' Crown |inrcliased the Mivcreiixiit v ol' both Carolinas from the iiro|irietor>, and al>o se\cn-ei:ihtlis OP THE COLONIAL CONSTITUTIONS. 285 of the property of the lands, which purchase wa.s con- l^rincd by act of parliament, and, in consequence thereof His Majesty appointed a Governor of North Carolina, v,'ith a power of calling assemblies according to tlie laws and usage of the said province. It appears from the journal of the first assoml)ly call- ed after the Crown's purchase, that the assembly con- sisted of forty-one meinbers, viz ; For Chowan precinct 5 Perquiman.s Pasquotant Currituck ^ , 5 5 5 Berty Tyrrell . Beaufort , ^ 5 5 2 "yde 2 Craven , , . . 2 Carteret , , . . 2 Edent (inlcr, \ i/; Ni'w Ilanovor, Edgecumln?, Bladen, and On-low. tin- two last of which were conlumed by act of assciiilils I7:'.i. In \1'M Gabriel Johnston E,s(|. was appoiulcil (iovcr- nor of this urovince: and Ihe first ass.uil.lv vvlmli m.t • m t 2^6 OPiNTONS OF EMINENT LAWYERS. after his arrival was composed of forty-nine mem- bers, viz: Fi)r Ch.'Wan 5 Porquii'.inas 5 Currituck 5 Pasquotank 5 IkTty 5 Tyrrell 5 . Bern tort 2 Hyde 2 Craven 2 Carteret . 2 Edyecunihe 2 New Hanover 2 Bladen 2 Onslow 2 Edenton 1 Bat 11 Town • • 1 Newbern 1 49 In ^^'M^ the writs issued by the Governor fni- cnlling assendilies, which before ihat time directed the north- ern counties to send each five incuil)crs, were nltered, and thi'V wi'ic diiTctid (u scud not any particular num- Jicr, but ic|ir('-cidativi"s only, in ircncral word-;. Durini:' tlic administration of (Jovernor .lobuston. jiart of Hnty County was. liy an act of as^cnibh . erect- ed into a separate connty. liy (he name of Nortbamptou, and empowereii (o senM two representatives to tbc as- sembly; and Ihe same act directed tli.it I'.o't v . o\nit\-, for the future, shall send iiut three; and at the sauu' ■%; '\- or THE COLONIAL CONSTITL 1 lU;\y. coiuitv, 287 time Edoecninbe eruor IJuningtou and had .sent tu whicli hud been erected by Gov- () members to the as- iis conlinned in th;it privilcne bv act of sembly, \v sen;bly. In 173U the town of WilminL^ti and emjHjwered to ^ond one representative to the assem- bly ; and, JTKk a liftle before the passinir ,,f the act in )n was erected bv act. question, two other count semidv, in the south ies were erected bv act of at ern district, called C Johnson, and empowered to send each tw tiv ranville and () lepresenta- es. From the foregoing st;ite therefore it imc of i>as>ing this act, the pan the t into sev.mteen counties and four t' appears that at province was divided )wns ; that four of these counties in the county of Albemarle, viz : Chowan, Perquimans, I'asqnotank, and Ourrituck. had, from the tirst establishment of an assemlily, chosen each five representatives, and the other two in tl viz : Ijei-tv and Tv le same couiity, rrvll, had been ei:!])owered bv ihe acts by which they were erected, to send the \\h bcr, until lierty count v w num- iis limited to thre ' 1)\ the act wiii.h separated Northampton iVoni it, and that the oth 1 district, commonly II-. 1 or eleven counties, in the souti called JJath county, had never s., i.t more than t wo each. Since tl 1 le passing this act. two ..tln-r comities have )ccn erected bv act of a> of Caro- ial tbev had a power malviuij: laws. with the advice. a,:sent, and aiiprobatioin.f the freemen of the .said province, or of the -reater part of them, or 3*.. i !- •|-; 288 OPINIONS OP EMINENT LAWYERS. of their delogutes or deputies ; and in a declaration soon after published bv the proprietors, setting forth the en- couragonieuts to bo allowed to persons v/ho should settle in that provinco, they declare that they will empower the niiij.-r i)art of the freeholders, or their deputies or asseiublyuRMi. to be hy them chosen out of themselves, to make tlieir own lawf^. By the hi ^truction given to Governor Stephens, iu 1C67, to call i.n assemblVj it Was declared that they should have a power of ascertaining their own quorum, provided it was lot less than one^third of the whole nunil)er. By the fundamental constitution, it is declared that the qu >i-.in of the parliament shall be one-half of the number. By the iii>trurtion given to Colonel Ludwell, and to his successors in the government of Messrs. Smith and Archdali'. concerning assemblies, they are empowered, with the a(l\ ici and consent of the deputies of the pro- prietors, the landgraves and cassiques, and Ihe delegates of the iVeemen, or the major part of them, to make and ordain laws, statutes, and ordinances. It does not appear, from any btK)ks or papers in the Plantation OlHcc, what was the regulation or usage with respect to till' (juorum of the assembly from the year W.H to till' year 17 b"). when the biennial law was pass- ed. b\ wliicli it )vas enan one-half it is to be jiicsumcd that this rule M-as o})servcd whilr tlie act remained in force, and it does appear that at the lirst assembly i' tiled by Mr, Burrington, a ma- jority t'[' tlic int'uiliers were present the first day of the session; ami that on the 1st day of January, 1731, the fw OF THE COL.JNIAL CONSTITUTIONS. 289 / «- first day of tbe meeting of the first assembly called by iVlr. Johnston, the succeeding Governor, he adjourned them, on account of there not being a majority present. As to the third point, viz: the manner of passing the law, it appears by tlie journals of the assembly, that the tussembly by which this law was passed met first at Newburu, „ii the 12th day of June, 1740, and were prorogued to the 21,^t day of November, to be then held at Wilmingt(m ; that they met at Wilmington on the said day, fourteen members being present, when the bill now in question wns'inuved for, and brought in and read, and ordered to be sent to the council the next day ; that on the 24th it was received back, and read a sec- ond time, and that it was read a third time, and passed the next day. This method of proceeding in passing this .. ., is rep- resented by the northern counties as a design of the government to v, -^nare and entrap them : (he town of Wilmington, to Avliich the assembly was pror >gued, be- ing two hundred miles from their habitations, .,,'d where it was not possible for them to attend, and th.it the fourteen members present were all of the southern dis- trict, as well as the council which advised the Governor to take this step. The Governor of the siiid province, in order to show tlie propriety and necessity of this law, and to justifv his p;r sing it, ac(piaints tlu; Lords (Jommissio-.^crs for Tr.ide and Plantations, in a letter dated the 9th of March, 174*). that the northern counties hiviui;- thirtv- one votes out of filt\-f(»ur, and being genei-allv united uu'icr the conduct of n f(>w dpsigiiing men. who found tlicii- account in keeping public alVairsin confusion, they bad made the Governor ami eoimcil and the remainin i^ood till ri'UoaU'd, and. consiM^iuMitly, void onU' Irom iiotilicatioii of tiic ii'i'cal; Imt (Ik' particular constitution of this provi'u is not stated as to the force of thidr laws, till approved 111- disa()i>i'ovcd li\ the Kiiifz;. (Jiio r, . — t*" *'«e id acts should, hy the repeal of the act in 17 l<>. '" ' ' ,^.il and void (//> initio, wiiat method wdl ii he jiii lor he ('rown to take to indeuniify s\ich pcr-oiis, who have acted luider the powers and au- thorities of such acts .' This falls witiiin the aii-^wer tt> the former (piestion. .luly liii !7-"):{, D. KvDKu. W. MlKHAV. (t».) l)i< Dpiiiinn of ihc Attointiy diid Solicitor-iri ii- eivi, Jliimti/ iind U.njil, on //i<; j'rii'ilct/e-a of the Jniiuii- t'u A-'i'-eni/tfi/. To the Kiirht ilonorahle the Lords ( ounnissioners for Trade and I'lantations. May it pleasi' \uui' Lord-hip- ; Pursuant to your Lordships desire, siirnified to us hy Mr. I'owuall, in his leiter of tiie l"»th instant, settiuj; [orth, that yom l.nrd.-hipH having; lately re eivetl a hrt- tei- from Mr. Knowle-. < lovernor of the ishiiid of .lainai- oa, in which hcacipiainls \onr Lordships with his hav iu^' disHolved ihe as-i-mhU tiiere, for callihL'' in ■piestion llin Majesty's riirliL ol' issuins; writs for ••lectini^ niem- liei'M to sit in the a— .inlily, without wiiitinti for a mes- satit' fn-t IroMi them: and inclosing to us an extract of tin- sjiid letter toijelher with aiMipyof tin ri'solutiou oi the ,'is>einhl\ , upo,: which that dis.Milntion \\as foinid- eii. (wliii'li extract and iiip\ are iicrewil h refuiue-emM\ were war- ranted in coming to that n-.-ohition, and win ther it he OF THE COLONIAL CONsTITrTIONj 2'j3 consis lent Willi His MiijesU's rights ruui pivroiriitivc we iiiivc considered tlioreof iuid do not tl iiiii\ oiirselvt'H Mil tioii n-iitly iiiloiiiied to ;.Mve an opinioii njxin tl le (iiies- ,i;eiier!illv stated, be caiisi it depends noon the (■on.->titntion ol" the assenil)lv of J; iiniiiea, and tlie nsa wlietliir. whilst tlie assonjhly is sitt K<' »i>\einoi' inir. all \aeancies slionld liist he sin-nified hy tlieinselves to the ( and yet the case must I'mpiently have happened. iNoth- iiig is tiansniitred to us relative to th(> particular cousti- tiition or nsii;-e in Jauiaiea upon this point, .nd there ■■ivv no parties to whom we could send for inlurnial ion. liuis seems analoirousto die law \\ hat the asseinhly eli and practice here; hut it does not from tl sarilv follow that it u-nci ncces- is, or oujiht to he. the liw tl lere that nni'^l depend upon their own constitut ivhi(di, without further light, we caiuiot venture t in opinion upon. ion ami usas;e. o give April -Id, IT.-..-). U .Ml lilt w. (7.) 7/n Ik II. Li.o^ <>l'lnl(iii of th< .^toiir hi tn/t !■•<. II •In I In r (I III /■■ ^1)11 i>\i II I n to thr As'H-inlili/. Iiihl 11 ris' desire, signiiicd to ns I Ml I'nwn dl. in his lett«'r of the L'oth in-tant, '""'' lliat \our Lordships hail le.cived ahttcil 'V ■I ting ^li Kiiowles. ( J, loveriior ol Jamaica, dale<| tl rsoluti.iii (a copy || will, h letter, uiul llie other pain-is iiiclo.M;d h > us, are sf \i\ 294 Or-iMONS OF EMINKNT I.An'VFr;^. herewith iTtir mnl.) (le-ii-inii. urn- ()]Muion whetlier Mr, Dawes, the uentlomim luciitiomMl tlicnMn. l>_v having been oonvirted in Enuland of uft<'ririsj; tieasonalile ex- pressions a>;-ainst Hi< Mnjcsty. ami -ciitenceu to enter into reeojjjnizMiii'e tor hi- ^ood hfliaviom- lor soveii ycnrs, is disqiiahlied duriii'^ tint term I'roni ii'Mni; rlcctcd into, or sittini^ in. tlic iir-< II III ml Niyrthi ii.iiiiil IliiiiiHiri, hoir j'ur n rcprefi&fifcfii'i, ii!>.si ut- imj hitiift/j, iiiiiij J'C juiiilxluif. To the Kif^lit Hon., tiie Lord-- Commi^sioneis for 'I'ra Ic and IMantatjoMs, My Lonis : in hnmlile ohnhence lo Her Maje^lv s eoiimiand.-- ill eoimcil .siL,Mihed to ii- li\ \oiii Lord-lnp-' >ecretary. \\t' have consiih'retl wlial methoil nmv lie piopo-ed lor pun- isliin^ siiidi mem'ier> o| the af«fendily, wiucli eonsistin;: of (svo and !«ent_\,ai!d lifteiii lie!ii;f rej>ut','d thi're to he necessary to lie nie-eiil eiuht of tlieni ahseii- tvd theiiiHelvcb vohuttanU, ami ihereh^ tiu> liroouudiugs ^ OF THR rOt.ONIAI, CON ,TlTUT[()i\s. 295 Of the iisseiul.ly have been il.r n Ion- time obstructed • and we do liinnbl.v report t.) yo,,, i^ordships^, that the as- sembly in JJarbadoes bej^am and liatli been continued, by virtue ..rthc eanuni.ssions .jrranted from time to time to the (u.v.MUors or tliat island by Her Majesty's prede- cessors, iuid by ih>r Mnjesty. whcref.v the Governor is enabled, by the advice of Her Majesty's council there, to summon and call .^^ciiiT.i! a>M.mblies of the freehold- ers an.l planters (here. an,l, with the advice and consent ufthe said <'ounci' and as.'.'i not by order ..f Her Maiesty „r her predecessors, or by any act uf (he asseuddy c.nlirmed by I ler Majesty -!• her royal pre.leces.sors, is irre-ular. and could not al- ';■'• •'"''i"'"'ni a^.poinh'd by Her Majesty's commis- -ion. As (o (!,.• case ,,r(he abM.nlee<. w,. ^e humblv of "I""""' that tbevben.^ .'boM.,, au.l bavin^^ accepted of <'"'l''-><''-^nHl a.imi: in the a.sseud.ly and v ilfullv ab- scndn- (hemM'lve^ wiil„,n( any just oecasin,,, (o ;„e („- '^|1 obstruction of ail bu-ness, tli.-y nrv -„iltv of an '''-'' "''^" '"cauM in tUr ev,.entinM ni of (he 'frust in ''"■". lepornl, n„d eo„t,.,npi f He MajeHtv's roval au- ''"""■' ="'"' "" "■ '"'"'U- u..puu. T expresslV l-.l^ed l-v ll"|- Majesty ,n I be a^M-,ub|y tn ,„>,., b su.'h ...tences, "-> .nay be proceeded a^aiuM in 1 Icr Majesty'gordina- 'V courts uf justice then', and punisbed ,,y rM"'.e and im pi isonment. Ik t f i i«'''--id •■ 29(5 Ol'tXIOXS OF EMINENT LAWYERS. But wlii'tlior a i)r()sociition of an assemblyman in the courts nt' justice d' that Island, w'thuut any a]>[)licatiun from the assembly to H '• Majesty or her Governor there for that purpose, may not te id to Her Majesty's diFPervice, by ereatin.-eii\Mies. and occasion an un\villin|)li>'d 1.1 me on behalf of themselves and the re>t o:' the ab-cntinj; members, and repn'snited that a matter of fuel stated in the report lately m:nlc by Mr. f olicitor and Hivself hath been misrepresented, Ibr that tlu' .-aid assemlily hath power to punish thrir own mem- bers, and tluivloiv, they desire an opportunit\ !> make vu\ tlie .^ame ; 1 am content that tlie said rej^ort m." be reviewed and altered ,.< justice shall reipiire, which 1 deciire you to coiiiniuni( tte to the Lord^. KUW. NoKlUEV. Februarv '.I, 170 I. i i will tin r the A'<»t"nil'!ij of So'th ('droliiut til' I'-i!' "/ 1^'i'jhts Soci4>tii. Quo.stions nrising out of the foregoini: -tate o*" fnets, and 11 H,n wbieli .pie-'tioM-* the opinion o|' A ttMrney-( b'n- eral is desired nrc : W betlier under the eircumstflruM'.s almve mentioned, th.j e,,!!.M!on liou.-e of the assemlily of South ("iimbna > OF THE COLOMAI. CONSTITUTIONS. 20'; can, or ovo, could, legally, by an order of that house alone, not concurred in hy the othor two branches of the legislature, appropriate to specific public purposes, any sums of nir.uoy for sucli ])ublic purposes of the colony as tiie said coumions house of general assembly might tliink lit / If tins (pic^tion is answered in the aflirmative, thcn.picsti.m whether, und<'r the above menti ist. I am of oiiinion. tha^ tli." house of ;,svend)lv of South ( arolina cannot, by the constitution of that colo- ny, without the <'('ncurrence of the governor and council, legally dir. ct the treasurer of (he colony to issue out ol' the l)alance orsurplus ol' funds arising from taxes <;rant- (d to the Kiiig, and appiopiiated by f|ie legislature of the colony to certain puldic services, aiiy sums of mou- c\ for su(d' other public j)urposes of th<' cid. i\ as the lh.u-.e of assendly shall alone think lit. Sucdi a jx.wer U"uld. as 1 conceive, be contradictor\ to the lirsf ;,,id I'lin til arti(de.> of the couuui — ii>ns and instructions, i-e- piiguaut to the natmc of the )j:raid by wlii(di the surpbi.s must reiui'in diembl\ . of lb. Sfh of il ' il > ■ !■ t. i! ^'U: t 5 ! • eeemliei' la.f Is not tr rt.,J ^ 298 OPINIONS OF EMINENT T-AWYERS. ml:. B '' not only as they cannot, in my opinion, legally' issue the j,ul)lic treasure hy their sole autuc.ity but as the sum is directed to be paid out of any money in the treas'iry, without regarding the payment of the appropriations mentioned in the act of assembly ; and as it is to be ap- plied not to the particular service of the colony and the . upport of the government thereof, but to be remitted t<.^ Great Britain, for the vague and indefinite puriWoC of supporting the rights and lilxirties of Great Britain and America, to be ascertained by the arbitrary pleasure of seven particulaf ix^rsons, and without any immediate re- ference to the service of that colony. 3d. If the order of payment of thr money is not war- ranted by law, the payment cannot be legal, and the troasmer has issued the money without authority ; but it would be hard, after the late aecpiiescence in the or- ders of the assembly, to make the treasurer liable to the conseciui'uces of a wrong {xiyment. What preventive measures for the future may be most conducive to the service of tb • colony ami of His Majes- ty's government and to prote<'t the subjint from the rep- etition of such exactions whetherby the parliament here, or l»y instructions to tlie Governor, must be submitted to the wisdom of His Majesty's servants. Wm. Ue Guev. Febrinrv 13, 1770. OF THE COLONIAL CONSTITUTIONS. 299 (10.) S'mrnl opiniom on the net of the Maryland As- Hcinhbj, -fo7- the cslabllshmeut of religious tcorship, accora- ingtothe Church of England:' Tlu: Jollowing facts may be premised, as tlie case : King William deceased on tlie Qlh of March, 1701-2; the Assembly, which iros thereof, ler ccdled i,i the usual manner, met on the I7th of the same month, and during its sitting passed the net in question, without the possibility of lomcing that such an event had taken jdace. Governor Seymour, the successor of Governor Blachstonc n-ho summoned th:, assembly, ujmju his arrival, on the ntk of April, \~^X,fnind the same Assembly exist- ing that had been called by his predecessor in the name of King William : so that there verc three several sessions of Assembly held after the demise of Kn>g William, to icil, in June \m2, in (><'-)Im:i, 170;}, and in April 1701. b\v»i.— The opinion of Mr. JMlyday, an eminciU law- yer of Maryland, on this subject : King WUliani diod the Sth day ..rMur.di, in the joar of our Lord 1701. On the IGth day of the sanio numth, an assembly met, under Governor Blaekstone, and con- tinued until the 2otl. of the said month; in which was made the act for the establishment of religious worship in this province according to the Church of England and for the maintenance of ministers. Two (juestions con- cerning this net h;ae hitely been stirre.l; whether the act be in I'oree ; if it be. whether the Slierills can exe- cute for tht> ii.rty pounds of t~^Kwrn per poll, establish- eil by (he act for the maiuteiiimce of ministers. 'I'll.' nbjirtion to the validity of the act I t^iko to be foiuKJ.d on the fa<-t of the King's d.-mise, whereby it is supi)used that the assembly was dis.solved, and therefore the act Iliiule bv I M^rMiiiKii 1 1 11X71 .1..*: }00 Ol'IMONS OK EMINENT LAW VERS. 'J am ol' oniiiioii. tluit le utoivsaid act is in loroi If tl 10 ohjection (li\".\vn I'nmi the domis-^ of tho Kiii"" can be ()l)viatc(l, and it can be shown that the act had the validity of the law when it was made, I conceive it will folic w, that it is still in lorce : there is no limitation of its continuance in point of time, it is therefore a perpe- tual law, and 1 ilo not know that it has l)een repealed by any sul)sequent act. At the lime of i\\v Kinir's d(>ath his Govtrnor lierc w'as actinii' under bis commission, in (■.)nsc([uence of which, lie >v,is invested witli tlie roval antliorit\', had ower t t o law; o cal and prorou'ue an il d issolvo -iSL'i nbl le.- assi lit tl) exercise the other functions of the royal cai)acity witliin this pi-oviiK and I appreliend that so loni:' as that commis>i(m rcinaiiu'th in force, all acts done b\- virtue o|" the iiowers cU'iixcd from its words, are ^ood and \alid. 1 ha mise o[' tlu' Kim:", all V(> no diiubt but that l)y the de- commi-sivtns granted l)\ him (hi- rinir pleasure would ha\e determincHJ, unless provided lor. But by an act of parliament made in the sevt-iith year of his rei,i;n, cap. ^7. it was, amonust other things, enacti'd, that no commission, eitlier civil or military, should cease, determine, or be voiil, by the (U'ath or de- mise of his .said Majesty, or of any of his heirs or suc- cessors, Kiiit^s (tr Uui'iiis of Kniiland ; but that evi'iy such commission should be continued ami remain in full forci' for the spaci' of six months next after siicli dcatii or (K'nii>e, unlc-s in tlu> mean tiiiu' superseded b\ th(> next immediate successor. And. by an act made in the first _\car of t^ieen Anne by the parliament that siti iiui' w 1 W.'S leu i ue i\im:(lii'd, and m that same ses.sion, it »vas enacted tiiat all . id siiiL'ular the pro\ i.siniis. clauseH, mattvrs t*» thiiiics whatever, contuined in the aijuve re- OF THE Cdl/ NIAL CONSTITUTIONS. 301 cited part of tlyj act, of 7 W. III. sliouM c-.xtem], and be con.stnu-d to extend, to the kiiiKdowi of Ireland, to the Islands of Jersey and Guernsey, audtu all His Majesty's dominions in America, and elsewhere. Bv these pro- visions, the Governor's commission Wiis in full iorce at the time of making the act in question; it did not cease, or determine, by the demise of the Kini^-; for, if the general words of the act of 7 W. Ill, did not extend to commissions in the plantations, they were undoubtedly extended to them by act of Queen Anne, wJiich, by ex- press provision, was lo have its operation and com- mencement on the 8th day of Mareli, on which dav tlie King died, so that there wms no interval of time be- tween 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 u necessary consequence, that, by the demise of the King, the assembly of this province was not dis- solved; lor the reason why, by the death of a K, the parliament was dissolved (until the case was provided for by the statute,) was, that he being considered in law as the head of the parliament, that failing, the whole body was extinct. But the reason does not subsist in this case, for the politic cajjacity of the King, in which only he can besaid to be the head of the parliament, was still residing in his Governor here, as fuliy as it had lieen at any time during Ids life; the [Governor's coin- imssion wi.s from the King that coiiiinission was in fidl force, he was invested with all tlu' powcr^ derived lioui it originally, amongst which, that of legislation, calling assemttlies, and as.sentiiig to laws, was one. The Crown whilst the government was in it.s hands, and the Propri- etaries, in the time of their administialion, iiavt- exer- III ,i.r»s-! , .Bar! m ' 'I i] Mfl 302 OPINIONS OF EMINENT LAWYEKS. ■r^ t Sfl^k^^E It k> . ■ 3 ^ 1 ^^I^H ' I^H cised a power of dissenting to laws passed here by their Governors : but I have ntn^er understood, that the as- sent of the Crown, fir Proprietary, was thought necessa- ry to the validity of an net of assembly to which the Go\ ernor had given his assent, such act having, to every purpose the force, and o})ligation of a law, unless dissent- ed to by the Crown, or Proprietary ; and I think, that this being the case, it may fairly bo inferred 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 nuist 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 notwith- standing the demise of the King : nor will it follow from this reasoning, that, by the death of the Governor, the assemblv would be dissolved, because the powers of a Governor, though perfect and complete whilst they con- tinue, are but delegated and derived from a super' , to whom they result immediately on the deatli of the Gov-. ernor. 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 oflittle weight: the King is here named in his royal and politic capaci- tv, which, at the time of making the act, it was to this purpeople and opinion of the legislature with respect to its existence, and fur- nishes a strong argument against questioning the force of it at this time of da3\ As to the second question : By the act of 1702, sect. 3, for the encourag-ment of faithful and able ministers, laboring in the wor c of the gospel, to come and reside in this province ; it is enacted, that u 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. G, that, for the better and m.u-e eifectual collecting of the duty of 401bs. of tobacco per p.)]l an.l paying the same to the uses intended ami appointed by the law, the sheriff of the county shall, and is obliged, to collect and gather the said assessment of the several persons within each respective parish, in the same maimer, and by the samo authority, as the public and county levie> are collected, and shall pay, .^c. It could s.Mrce be imagined, that a' nunister, who had a c()mf„ital)le establishment in Eng- land, would be induced to come.verto this province ior the sake of the jM'ovi.sion ma(k' by this act. Those who should come, it might be expected, would be such as from their circumstances uuist depend on their sala^ i i i 30 1 OPINIONS nv EMINF.NT LAWYERS. ry for the support of themselves and tlieir families. Hence a necessity tliat this should \ie annually collected and p.iid, an an one can be found to have been existing when the act of ^.^-,was made, it might perha))s put an end to this question. If there was no such law in being, the mode referred to must be the usaLie and practice of the time. The act of lOOO, of directions fo. the sheriff's office, which was a per])etual law, and, I apprehend, Cfmtimied ^n force until it was re-enacted in 1704, does jdainly prove the uioilc then in use and practice, to have been bvexccutio. It restrains the sheriffs from seizing to- bacco uusliipptd, or marked for merchants, or others, for any ian>o except levies, and gives him r {lowor to break lot-Us in order to seize tobacco for public levies. This law was itgain le-enacted, .«o far as concerns the ! OK THK UOLOMAL CoNSTITUTIiJ.Nft'. 305 ce. •) itl tl pi-cseut .jue.stion, with son a perpctiiiil law now in fur restrained from .sei/in<>- to) cause except levies due to or for the 40lbs. ol tohiu-ci he is empowered to hreuk coibr le\ics and dues as ail In ](i!,)!), the law of 17 tion was confined to le\ii'- 4()ll)s. of tobacco [)er poll I was t the body, goods, or cliatlel he has made a demand llu dav of February. The 4( lib oiAittiul, and I couci'ive wit! might know without denu mini.ster. Rv the act of 1 7i' ot this law are to be le\ ii.' execution, as other public d the act of 1724, cap. 21, no fee or reward ibr executin,^ levies or any j)ublic dues oi- cites, that several sherills, tn had executed several person ics and oilicers" l\'v<. and li; thereon ; and that the powci be used in oppre.ssion of the the sherill' t- collrct the pub with greater liieilitv. ('.sife expounders ofn law: the u.sj ly proved by tlie acts of assembly le addition in 17 lo, cap. -iVi i)V whicii tl; e sheriiJs are icco unstripped, c^'c. for any public, county or 2'arisli, tlu >per poll to the minister: and in Mi-drr to seize to! K.C- resaul not >ein<>- m,! ie tl le excel 1- I 1). it inclii (le- the minister, be cau.-e the that lei-eil in (lie le sliL'ri ff !iai am>' manner. 1 not (lue> or ohicers it levy hy s, upon of any iuliabiiaiil, e.\ce))t rc'it at bel or. the 2nth s. of tobacco ])er poll is hen 1 (1 ign, because > e\ ci'v man ind Avhat lu was t o i)a\- tl ic 5. I'iip. 1(1, linv^ for brea(die^ d ue: )y the are t ncfiii. i)\' waA" o, O lu,' le\ i!M 1. IJv iK'i'iir shall b,. alln-.vi'd »r aiiN jnibii or CO oilicers" fe( reasf Th tl i.'e- lo tliem-e!\e liny uut'> ict rc- b s for public and (>oiiiit\ lev- 1 chai'ged exccuiion f exciM ees til n ouubt nut vo eiiai peiijde. but only {• lie dues and oilicers' is .Slid to be o,u' oftlu^ 1 ige, iu this ca.se. i- ikii I'li- abovc referred l'», wliieh F' I ! U !P ! n!i- ii 30G OPINIONS OP EMINENT LAWYERS. at the .■ianuMiii" that tliev cviiioo the fact, shew the srnsf oi'th. k',i;islatiux! witli iH'spoct to tlic h'tfality of it.l)ut iiiiulit Ih' appoaU'i' lor to the ex|)erienc'e of every man in th;' c unify wlio li\ mI ami was conversant in husi- ne-^s, ncfore the in>|)ecti. ii l;i\\' of 1717 took [)lace, the shei'i'l's used to c\(enfe hody or f:^oo'is. as h<' Uio(iii;ht ni'' t effectual for olitahiinii' ]>;iynii'nt. 'I'o d,aw this iiiatli'i into a nari^w c )iiipass. the terms tax, assessuKiii, 1< \ y, a- i.-cd in tiic :u'f. convey an idea of soiiietliinu' coin[iid>oi'y. Th^' sheriff-, In the act. are ohliired toeollfct thi-- tax and t" pay il annually. The purpose-j to which it is applied, recpiiicd th.it ii should he mmnally cojlectcil an. I piiid. V cotipMl^ory power. theret'ore, in the hands of the. iierMf. was necessary to eiial>le him tt» (li-iehaijr*' this ohliuafion ; the law j)laiply intondoj;iv"hini a compulsory power. Of what na- ture wa'^ It 7 I cciiceivc, for the rens(>ii> a>sii:#d. a power to exc ute lioily iir puids, its si i u Id I"'.- nio-^t <'ouduci\c to the end .lad pii. [O.sc.-i of lii' [lower. .Ia.nu:- lloM,^ll\v. August I, 1 77-. Secimd Sk< Il In s- ilt' nil lllUIH nil III nil llli\ flllliJK tjnj Ml Pllli iel Jhddini, (>!ii of till iil'fi •\-eciifi.)n &c. The ])laintift' replied, that after the .-^aid eoiumissicn, and before judgment, another eonnnission issurd. ic. Fish i)riiNe.l judgment, be.vuise the plaintiff did not allege that tbc first commissioners had notice bef.Mc jn Ignirut of the second conmiission ; bcrause, though tlu' second commission, when i-xeeutt-d, ]ia>, to some piiri)oses, relation to the date, yet the acts done imder the first, before notice, were guod.—So adjudged, 34th As. I'l. S. binder a eonnnission to examine witnesses, the com- mfcsioners began the examination the L'.Sth of March, Kl'i), the day after King Jamess dcniise. but before no- tice of it. AgiTc.l, the commission wn.s; d-tenniiicd bv the loyal demise, with(ait any notice; but held tiiat the protH'edings bcf,.i(. uoti., were i^ood. and that the wit- nesses, ifiK'ijuiv.l, ini-bt be punished. bccau>.' cNMiniiia- li'-n bci; V not!,,. ,,ftli,- ro\;i| .|,.|iiisc wa-^ legal. (Vow ''■ ^'•'■'""i- <"'" ''■•'i- ''7 in w!:i( h i.il, .\,^s. is reUr- 1C(| to. An attai-hini'nt -^ur I nut in the time of ( 'ar II and executed at K\eler (hiv .l.i\. alter iiis .jeiui-e. but be- '""'■'• ""*''•>' "I' ''. Ii''ld I" I'C goo.i. \UuvU r M.is |M.\\.|er, 1 \eiii. KM) in u bl( ji the ca.>-e in ('id. i.^ eited A (•oiinui.-.siou t.i AliiieiN to , N.niiine wilne-<-e> Tiie pliiintilfdicd bet,,ie the csaminati..u I-ut ibe uitu,.v.,- * ''"•'""'■' ::•;;'.■ t!i ;;;..;;;,;; ii t iioi( i i j j.i i uM I 308 OPINIONS OK EMINENT LAWYERS. suit was al)iite(l, yi't the oxainination bel'ore potioe held to he ^()0(1. 'rhoinpsous case, o P, Will. 195, in which the case in Cro. is lel'eri'ed to. Whatever eirectu;ill\ dctcniiiiied a coinmission on the |)rinri|)les ofcoiniiion hiw. whether a royal dennse, a new (•oiiiiiiissMHi, or death nf til.' party, sh')uld, on the principle dl'thi^ olijectinu to the act of 17*H, invalidate all aci> done iiudei' it : I)ut the ca>es cited prove that all act-; done !>c!i)r>-' notice avc valid. When a new Gover- nor is iij)pointed in Kni;land. it takes some time to con- ^('y hither notiiieen Anne ! .Xn^wi"-, it takes time, after a royal demise, to -etth' the proper an .in;;ements of ;4()Viiiiii!enl. Tlu' coinmoii law only siipjKirted all (»ffi- cial act- peirormed liefoie notice, and. therefore, the stat- iii<'^ ha . e |jic~cr\ (.'d and <'oulinned all conimissioirs for six moii'ii-, and tlin^ i oiiipiehrnd as well acts doni' alter as Iief.ire nolirc limine tliat pciiod. Snch was the de- \\i-{ "f tiir i-ohiinon i.iw auil •iich the remedy providecj ly liir -laliitt - 'i'lure can I"' nodcnht. ImiI ihe art of 17" I passed with (he fidli'st «'oiii iiriciit (• and i--ent of I hr ( "rowii and tlu' two lumses. l-di niii ImIU on ihr same sulpjecl had j)ass- 0(1 in Maryland ; Init iIm'\ \\ci< .Icf'-atrd hy the royal disstMjt. 'I'll*' asseiiil>l\ acldresscd tlie K ini; :ind e\|)e(t- ed that he wniild oriji i a hill In he framed |or the pnr- pos«' of a rehiiious c-t.ilili-linienl and to l>e reinitteij lutli- «'r for tlie n> . nt of ihe two hoi' ■ s 'Pin hijj u,).; ,ic roitlin^rly frnnietl, rennlleii, ami a^-enled |o ,11 1711I uiuroover. ullcr the deuiiwc of Kinu \\ illiam. liie act of or THE COLONIAL CONSTITLTIONS. :]t)0 17assed in Ujeconvention parliament, which was not dis- solved uilfhe "^'.tth of i)ocend)er, Ititin. \'id. I'ail. liist. vol. \.\iii. and what i^ said in Vent. lo. applies much stronji'er to this ca.so. There was a precedent royal assent to tic act ol' I70I ; liarliatiicut and assemhly not t(^ he confoundiMl : local • •ircuni-tauces. as well as other rea^.n-, distiimuisli ''"'"'• '' i-^ ti'iit', there cainiot lie a royal assent hcl'ore Hi'- ni.riini; of pailiament ; hut it is ini,., tiiciv cannot he a nual di.-^M'iit alter asession of iiarlianunt. To acts ofnssemhlx Ih.'iv uiav he dicnt shod fe sent to liic Lords and ('onnuous and n- ci vr ihcir as- hoiital.so, it \\,ml\ he a, perlcct law. if, ,,1, n, the toun "f;i 'harter, as wa> theciise with .\Ia-ua ('harta. That A\hich coiistitntes law is the concnirinu a-M-nt of all the hraiiflieH ofthe leuislatin-e, where>oe\( i- it uiav ha|qien to orij^iMate, whatever may happen t.. lu' the t'oiniof it. Vi\'m 310 OPINIONS OF EMINENT LAWYERS. I f I t f or dissent, subsoqncnt to a sossion, shall he so eft'ectual, may not any assent, helore a session, l)e as etVeetual i if there he a restrietion in a governor's eoinmi-^ion with respeet to partieiilar act-;. ;ni«l tlic re-tiiction l)e not ob- served, liis assent is ;i nnllity : tiiis is in the nature ofa precedent i-oyiil dissent. Why, then, sliouM not a pri'e- cdent royal assent he cllrctual .' Sii' iMiHi]! Yorke and Mr. Lntwyehe wei'e ckMrly ot' tiie ahove 'ipiuum on the I >int ot" restiietioii. The discretion in passing' acts df parliiinient, nrnot, is a royal incnnninmicahlc prerousitive ; hut iiot .so as to acts of assenihly. Sucli (li~ciiti(iii niiy he coiiniiunica- ted to a (iDvernor. The statute iil'IIeni , VIII. relates onlv to the nieii' cxeciilidn .iftlie i'(i\:il will. The idea ol'a proviiK'ial leul -iai liie to Ik' kept up. It i.s !„ very sliuiit olijectieu that tiie i\in,t;'s name was used aft(>r hi< (U niise ; his iiauu' wa,- luiiieeessary, and tidh j>rr iinitil' ikui rili'l i: r. Tiu' roxal name is not used ill the a<'t- III' New ^'ol■k oi- \iri^inia, \\ ii.it is >:\'\i\ of proro^at jon and dissolution is a mere mi take : tiiey \\\.i\ he, and usuidK' are, in I he ( io\ ernor .-• name, Next con>idei the ^tatul^■-. All eommis.'^ions continued in lull force and \irtue for six months ■ contunianee and :-u-pen-iou aie a> oppo- site a-; mot ion and re-t . I f I hei e \\ ,i ■ a ennl ninauie tor nix months, there enuld he no -u-peiision within that time. Full force and xiilu'.'. J'Unvm cMf. rui nihil iii>f ftii> n>jMi>iiih'^' iind i OP THE COLONIAL CONSTITUTIONS. 311 pass .lots undor his coiiniiissioi^ tlu-re was something waiitinK, ii'Kl the 0()iniiiissi..ii was not continued in full loive; a conc-hision dim-tlv iifiaiust the statutes. If the (n)venior had authority to meet the as.sembly, it wa.s (•\erc.sahle, raiKi ,„ini ,-st i>,>fntti(,, q,t<, noii in actum niiit. LM'n. .■)!. The assertiim ol' a power unexerei.sa- I'le, is ii eoiitridiciion ; hut it is sai.l the i)owor was ex- •■n-isahh' only in the name of ll,r Qn.Tii. The ah.snrdi- iy is the same, fe.auM. the .■apac-ily . exercise the pnw.'r is i,ia(h> to depnid upo,, an ini|)ossihility, the kiiowh.lnv ,,|- .,„ ,.,,,,„ iniattainaMe by any hmnan iiH'iois. The law ..xi),.,.ts u.. mirach's; it is satisfied with hnuian prudcnr.'. ( '„.^>(.s /,„■!, n/i,.^ „o„ < .sf .^penm- .///.v(,,/y„r/,//„//..v). ,f I.,, no t.iatiir .,f t, mpnra, unit, tin ii,n,i hoiiiiuiim,n . nnitatu ■^■>nif ,t .s,(,h- tloins. innii i>J>,ri„r, reijiil,i ,>n.s,;.^ tni,p,>,-il,u.s iur„„nif>- (I': , ini.sl ll\ \ll /{f (llil III . <^a■,.^ \\nu-. oi, tl,.. Illh of Man!.. ITdl, met the pMrliam.mt that uas „lliii- at Kin- Wiiliaui's ,h-mi.se, '""''■'■ >li«' -latnt... Tl Lordv-.Instieos m.'t theparlia- inrnt after tl,,- dr.M Im,| (^)n,vi \mxv, ,m.i.-r thr suU ut", (Jeor^a- II. „„,t ,1,,. p.-nii,,m.>ni liiat liad h.v.i v„,H,u,,ne ueoessu- rilv ah>ent iVoni the asseml)lies ; what is done in tlie ro\al name is, i ior tlie most part, done 1 a (Icputv where in the ureal ixiint of passin.i:- huvs, diseritionary powers are iVei|Ui'ntly entrusted; where, as has ])v^•n sliewn. theii can lie no ( letect, on tiie I inneiiiU's dt' tlie ennnuiin law, in act- ul' "iovernment pert'oriucd !)v'c)ie no- tice (ifa royal demise; where the powers of goNCiaunent, for six months afti'r a royal demise, are hy statutes c(ni- tinued in fuH loi'ce. terms which ex(dude ail idia ofsus- 1 defect; where those ]v>\vers ai-e therefori' idwa- -. dui-in,ij; that periotl, exerci>a!)ie ; where ])en>ion. ees~aliou. am e(in>i'( i!enti\. the validitv of the exerei.-t' ( ..uuo t dt pend upon an Uiipo-^i hie observance. (>iia)i> I'-.r ad- '/' ,/ ,//, lillt Cdlll' ,/it. colli' 'lifi riilijiw (.1 ^A llh^d i'tl'l r< Idlll j: An a. idiu'j; a //, s/. Co. Litt. .")('). ■t. it 1- am l);i>se(l in Vir- iliio /'c-y una : lliere- foi'c a -liuilar iiroxi-iou was m>cessary in .\| ir\ i.uui A senoti- aiHWi'i' cauiH'' III his rem, Ilk would In' ridicidoii- ; hiii l|iol).sorviim- h i\\ little care i-^ taken to :i\oid ■f;iii lid. lait tlic \'irgiuia law iiieludrs jiro< I'.s s us wei lUJ acts oliisseui on isii.>< toiiisi »in«jr. ])iit liaiiniii I l)ly. That till act ol I7>l i> relied up- Tlic latilc^ extend t I a royal demi-e, liMlh '>va- no moil ihoii-lit of hy piir- h.ni tlu' death of au\ ithei person wlio might I j.roprietor appeii lo ,i|ipoiiit iiu attorue\ liroliells aioeo •roeess as well a.s at II The art of 1751 very •Is ; hut thou";h the ■A of 1701 is iiuthinu; to the purpose for whi< h it haH OF THE COLONIAL COXSTITUTIONS. 313 been cited, yet, in another view, it is not immaterial. Consider the preainl)le of this ac and the rule of con- stniotion : the intention or will of the legislature dedu- cilile from the wliole 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 jki-^-^ after a })roprietors death should be aided, as well as pr(;cess. Jn order that this purpose miiiht be attained, tlu" act of iTol enacted only that the (Jovernor's comn)i>^ion sliould remain in force, so that as far as tiie sense of the assembly in 1751 is of weight, it follows, that preser\ ing the Govei'noi''s com- mis-^ion is suflicienl to prt'serve the powi'r to make laws; wherefon" it may be inferred from the manner of the pi'ovisions made by tlie act of 1751. lo have l>een the ojiiiuon of the as-ombly that the act of i7(t| was in I'orcf. With what iicen-^e are piinciples rejected and ado])t- ed, lino fittof Above one hundred acts have recognizeil tlic force of the act t)f 1701 ; but these (dear indications of tiie sense iifdiHeri nt legislations are slighted, the sense of the ligi-latni'c is su]>posed in one instance oidw ;nRl this one instanee is rojiresentrd a-< a conelii>ive proof. 'I'he arg>un( 1,1. from the nundici- of MipplcmentarN' de|icndent .'let-. and therefore of recitab. need not be insi.sted upou here. These aet> are so m;iii\ h^i.vlat ive decl.nal Mill.-, to wliitji all oUi:ht tn irise ciedii Pop l!c|>. 7'.' The act^ tiial |ia-ho\\ tb<' (iilies ; for II M-l ♦-$ , t ■ 314 OPINIONS OF EMINENT LAWVEBS. no new writ of election issued till after the April ses- sion, 170-r. If the act of 1701 )>; void, we have no religious es- tablishment, no rectors or vestries. What is to become of the churches, glebes, doiiatious to, purchases by, or from them, leases, &c. judgment, convictions, determiua- tions before the governor and council, assessments, par- ish registers, &c. / What will become of all those most useful acts that passed the od of June. ITlo, and the acts dependent up- on them ; f u- the assemldy tlien met on writs of elec- tion that had issued in the King'', name ? The (Jover- nor derived his authority from the King's commission ; Lord Benedict died on Ciood Friday before ; his son. Lord Charles, was a protestant ; the disability which was the cause of the royal a>sum{dion wa-^ removed ; the charter of the [)rovince had a full operation; liord Charle-; wa< restored; he iKcame ,'iipreine niagi.-trat(> in loco ri'/i'^-; Iiusand jirocess were to lie in his name; Govornor Harts conunission from tiif (^idwn was (U'ter- mined : a new cominis>ion from Lord Charlrs passi'd tho oOtli of May, I7l">. On the prini'iple of the olijcc- tion, all the acts tliat |,is>i'(l the •>(! of .luni', 171"). anil the de[iendent act- are void. How arc will< (o ln' pro\ - ed over again ; administrations to be granted : proceed- ings of delegates r/tiin : titles allectcd l>y tlic cin'olnicnt act revi\ eii ; wlicn ai'c the comts to meet. i*iuin >■•>■/. r<\- Horos <(• iiiii- rrdi.ijipily. a-, itgi-lat >rs (hey can- not renu'dy tlie incon\'enicnie ; for a re-(Miac(ioii ot the laws wdl not be .suHicient, and a conlirinalion would OF THE COLONIAL CONSTITUTIONS. 31;5 have a rotrospoctive operation, which they are princi- pled a,<;-aiii,orirt priu^,pwm fniat; but tlie coufirination of the act of 1701 is dear of thi.s iin])utalion. Ihr no jhtsou who did not connnit a breach of it would be liableto the little penalties, and none who did coniuiit a hrcnch could properlv alleiro that he thouo-httbe a.^tion lawful, because no'one doubted the existence an.l VMlidity of the l;,w. /.',„, ,,,. ,„^„, „j^,,^^ r>^t rca. Besides, all this tenderues. is alVected, since there cannot l)e a c;.se of punislnnent to be inllicted. All aidiuu- acts are retrospecllve. Suppose a lau had pa.sed in I Td I. iellieting the pains -t denth on tlie crime of burgla.y, and a trial, conviction Hiid .•x.-.Mitiou. before notice of tbe King's demise On "'*■ !'n".iple of tb.. objeefiou (vide what is .^uid by Per- .''ey in the year-book at large, above cited), the "execu- tiou.'r woidd have been guilty of nmnler, the Judges r-vernor. and Couucil, accessones. aud vet each would ''^'^'■I"''l-nned hi- duty. This would be more cruel '""Inn.iu^t tbaneveua clenr retro.speetive act inllicting aJittIc|-naltvonaua..tionsnpp,w,.d>.y (he agent, ^it the very tiuir of doing it, to br uidawfid. Mlli'iirv as well a. . Ivil cuuuuissious were .outinuud "■> .-i.tti4ie 111 mil loree a;i(l virtu< Sii l>l)o,so a court \ t ni 316 Ol'IiMONS OK EMINEaNT LAWVEKS. •;ii martial, trial, conder.uiatioii, and death, iiillicted ])Lforo notice of the royal demise. This may have pr()ha])ly happened ; what a deal of employment for Jack Ketch ! To eonclude. Suppose, according lo the rule in Plowden, the case stated, and the ([uestion put to the parliament that passed the above statutes— You have en- acted that all connnissions should continue in full force, &c. and therein included the commissions of American CJovernors : it Avas the duty of these Governors to act in His Majesty's name during his . etime. Did you mean that what they should do in his name ur a time when they could not know ly any human means that he was dead, should he void, because they were not, hy fiome miraculous iuterjiosition, informed of the King's demise \ No. It wa-< atfu'st said that all the siqipli'mentavy and dependent acts were void, as well as the .;ct of 1 7" 1 ; but it seems that the contrary is to be contended I'oiV in order to les,-.en the weight of the argument, (i}> iiu'mircn- i(:nti((. The r<>rmcr position was more consistent. Tf the act of 1 I'M was originally void, and none of Mie supplemen- tary or dependent acts have confinncd it, these acts arc void; foi'. as said a!)o\ e. it i-^ the will or intention of the legislature, which .'ousli lutes law. Without execution, the law is a dead li'tter; the execution must be agrci'M- lih' to the legislative will, 'i'echnical woi'ilsare imt. n^ in tlu' limitat'on of estates, nece-,-aryto ex|UH'ss their will. When one ai't is supplemcntaiy to. or de[)endent ui)on. a prioiaci, iiic construction is (ui l)o(h, the \vili bciim deducible frc'i both: it' tlu- former law be rejeciiil. the execution ol aie latter law will not be, as it ought to be, OF THE COLONIAL CONSTlTlTlO'v S. 31: agreeable to the legislative will. Wherelbre either the Mi]j|)leiaentary and depe- dent act:^ had confiniied the (•ii,!j;iii:il act of 1701, or they are void. What i.s implied ill a law, is as effectual as what is expre>scd. The rule, (■,rj>i'e-s.sio connn, qau- tacite m-stiuf^ nil opennitu)', is as api)lical)k' to this as to any subject. It is agrec-d that the act of 170 1 might have been expressly couHrmed: a con- lirmation 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 immerous to be applied 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 founder not. an imi)lied confirmation, I have avoided taking notice farther than I was led to do by 1st A'ent. 15. of what has been done in times of great danger or turbulence, because 1 think such instan- ces rathe;' show the distemper than the constitution of the state: hut as somethingof thi-i kind ha-; been indistinctly spoken of, I will add in what manner [)arliaments have been (Ninvencd upon accessions to the tiu'one. The fust writ of sinnmoiiS of the couuuons, now ex- tant, was in the 49th year of llciu'v tlic Third. Kdward the First was in the lh)ly Laud, at the time nj'thcdcinisc of his father, Henry the Third. On retm-n- iug to England, he was crowned the Uthol' August, 1-71. near a year and a half after his fatbei's ileath — Soon after his coronation, lie called a |)arlianient. Ivhvard the Second issued new writ- I'ebeini:: depos- ed by parliament and compelled to roigii. was succeed- eil by his son, Edward the Third, who met the ])arlia- 318 Ol'iMuNS ui E.MI.NK.N I' I,AVT^ i;HS. 4 li ment tliat had hoon omIUmI in liis father's name and had deposed him. This ])ariiament eontinued lor al)()iit one month after Edward thi' Thii'd's coronation. IJieiiard the Sccniul— lU'w writ of smumons. Henry the Fo'irth met th- pirliament that had been called by Eidiard theSc'': n 1. [feiii-y the Fourth had siumnoned a parliament to meet tht' li Uii of "Vhirch, Iflo. Whether Henry the Fifth met this parliament or not. is doubtful. Henry the 8i.\th i-^su 1 n-jw writs. Kdward theFourih i^-ued new writs. Edward the Fifth: nothini:' done in hi^ time. He wa.s Iwrn in a sanctiKU\- and died in a prison. Kicliard tlicTiii^'d i-siicil new writs. Henry the Sewnth. the .■-ame. Hem'ythe Eighth, ih*' >ann'. Edward liie Sixth, liie .-ame. Mary, the ^-anie. On he' marria^ue, a new writ issued in the naiiu' nf Philip and .Marv. ^\'hen -Mary siied. the | arliament was sitting, 17th Nov. l')')^. and pKndaimcd Elizabeth. Elizabeth is.-ned ntw w.its. 1st Dec. 1558. James tlie First issued new writs. Charle- tlie Fii'>l. iiie i, y, lOOO. He wa.s accord- intlly ])i-(Kdaiined. ."lOlli of .M.iw Charles the Seci.ml ct the t'onvention parliament. ,Tame< the Second i->!ieil new writs. What happened a! the IJcvr.hilion need n(;t l)e men- tioned. ()iieen .Vniie met the parliament (hat ^^ 's silting at King William's deml.-e, undi'r tin; statute. V OF THE COLOMAL CONsTlTLTIUAS. ai9 George the First. The Lords-Justiees met the pnrlia- ment that had heeu .suiiimoned hv ( >iioeii Amie. under the statute. ^George the Fir.st died at (Knahurg. nth oi' June, 1727. An account of hi.-^.k'i.iisc was .vceivcd ilic 14thof Juno. 0„ the fifteenth, tiic pMrlianicnr nict. was prorog- ued by conirui.s.ion to the I'Tth Jnn. . 1727, wlieu the se8sion was opc.'.cd hy (George the Second. 'l7tli July prorogiK'd to the2!)th ofA.gust. Ou H„, 7,], „• ^ugu^i I/2(, dis.solved and new writ^ is^ned, I have not, ahove, insi^t.Ml upon the act of 1704, though that ahine may he snhicieiu to estal)lish tlie act on701, becau.se iinrdly nny tiling can l)e suggested which Avili-not occur to every one wh,>..e imsinessTt is to consider subj.'cts oftjiis m.tmv. •u.re only olxserve, that the practice of aved. and having doter- rnme were convenient end in<-ou" -nient, '>v an act .similar f<, that of 17(14 .leclared the former should remain in force and llia, tlie belter should be re- pealed. From tJiis circumsiance. tlie intcniion .„• v.ill of the legislature may be strongly infe, red. [have al.o a- voided a particular app!i..ntion of i|,e suppbMncntnrv and dependent act.'. The debul would be vvvv prolix >nal throw no new light on ihe .picnon : but time bcinj one de 'lieiKient act of a pecu snort reMi;ii-i\ iqxiu it : f winch does not expn "■•'I' nature. 1 vjiall mal ce a iii<'an iIk' act . f I7I ( 1 •>. can. I\ iiienti '7(11. but enacts in geiier.ai t iiuhicted, or a.Imitted. .-ImII | '11 or icrei- to the act of criiH tbat a 1 mnistor. lawfu 'the 40 lbs. ,-f tol ia\e a prop-.i tioiialije part bom the day of his indu.'tioii to th •■'"''■" !"■'■ ]>='lb <-oiii|Mitiiig ihe til lie &c. Vid. the act. Tl a\iiiL;- tiie b le will of tl vy, le le dsUfi I r\ 320 CPINKINS OF EMINENT LAWYERS. the !:i\v. M\ this iict, ;'" a mlnistc shouhl servo the whoh' WAV v\cr\A ()';e day, he wouhl l)eentithM! to the 40 Ihs. (if toliaceo ]iei' poll, after deduetiiii;- for lii,>( day. Aceoi-diiiLi' tr the ol jeetioii, if the minister shoidd eoiii- pU'telv s(M\(' lir the whole \ear, l.e Would he cmitled t) nothing;. That theresht.'ild he ])arts without iiwho'e. ali- quot parts of uothiiiL,^ is a new diseovery. If ohj'cted, t'.iat the act of I TO I iieiuir void, there ean he no incuuihent. then there \\\\\>{ ahva\s Ik a vaeaney. and the lOlhs. o| tohaeeo jirr pull lie eternally applieil, under the aet of 170-"). eap. "J I. Ii'.it to what end ! If ohji-eteii. tlii- ;>et is void, ih-n till' arLi'unicnt ii'' im-onreiiii ii/id will have it- fell furce. \>. I). Tl nni '/ill < *i)i:!fii, 'III till .-'I'll' sithjrrl hi/ Mr. Willi, nil I'liiii. flu rniiiii lit Iniri/i r nf A/ii>i/litH(l *. <'n>^.. Tin [MoNiiire of Maryland was in the liand^ of till' ('roun in the I'ei^n of Kin-j; Willian and • Yft «•!• the 0|>iiiIon Dl'lIniiH^ iiilniOrtiil Iiiwyi I \\>t- Allornr)' niul .Sniicllnr Ymkc nnil T.tllxil, iiinlcr lln" hr»il of the GoM-rnor 1. .N(> '< : wli.ri'iii thpy btow Iheir jiHiKinrnl l" \in»e ofllic »nin« vnlii'ity in mic*) i.iws wntil I liuvi- lif^n, if llh y kad bfen \rtt pnivim-e liy iinir is ilir iiaini' in ci>Mliinpli»lii>n ufliiw ai llie drntinr .rf« kil>i;ii»iii liy llir (lii'en»r of tin- K'"'» ; niic! nnlHi' nl" lir ilrmni' liy iIp- fCiiM in n* neci-Miiry In ffftei the li-gnl ulijrrt, nt imlic r of ilie irnnxliT l>y «»Ip. TIip ■ophitrtrytir Mr. raia's opinum conii i.'' in iln", iImI lif rrninnii the >|iiiiiii>n «« if it were I'ciicBrnins the mipmnr Icjfinlatiire iin.l ii"t a lornl IrKishittirr, hovinp InfiU HMgVK-, nnd ihi- |i»-.il ii»ngr» «>f the (iixwnitily nf Mnrylniid n;i|ir«r nliovc In h»^^ been dillVn'til linni llir Imr i>f |millBii>riii ; drjieMiliits iirrhrtp', nitiidi liifte upon Ihrrontinuance of di" (iovcrnor, Ihnn M|«»n thr lift of ihr Kin, ; nwl **« inny ikh: liow •irunjj'y thin iiirti. 1 hint liikrn h»!d on the miiidn of l.iwyiTu, In theque»lii>n "i New Voik iiiinn tlw .liswjlmiun of Uw MMinblv I'V ihi diinonliniininc of thr lii I- OK THit; cuLo.MAi. ! u^.^l'^^^ TLiNs. 321 Qiionn Anin'. Agciioral jt.ssenil.lv, in tlir tiuK' ol' WiHiuiu had Ih'cii l(\ii;;illy olio-cii liv the Kiiiii' s w '■[[ df clctiou Jiiid siiimiions: Kiu^- \Villi!uii died ( n (lu; St!i M ax-U 1701-2: witliout any I'lixli u i it dfclrrtion and snnunon.s the as>iMid)h- aftiTward- met. and uu the llitli March IT'tl-l', Miade and enacted the cunt.' led law. coniniuid)- callfd tlio Invty |ui- nnli law . (Jwii-f, — Is this fdi-tv pel- poll acta i.iw cr [•<>[ ! The Kin,^ hfiii- thr ll.unlain .)!' al! jiidi-.'atnrt', thu writ ofsnniinons 111' ih(> pai'liaincnt i-Ma in his nainii and In- his iinthority . and tin' •■ ul! luicnt i and is held hv sncdi w ril ul' m nciicfs nniun .,! I ii i''i- ..ji!. civil and inilitar\ , IIdw I'v.nn him: and all protvss in the several conrts nt' jnticc jirocecijs iV.ini him and in Irs name. At cMiuan.i |a\\ , therelore, upo;! the dmii-.' nr death of the Kin-, lli.^ wiif.of'.suiiuiioiis ahated ind ih,; parliament was di-M.hrd: all .onnnissions, » ivil and aiilitarv, wer" deteiininv d ; and all pi'iicesi in th.- cdnrt.'i ul' jn.-tice ah;! d or di-,M'd in the lime of Kdward the Sixth . Imt not hrinj,^ larjfe and .opipn'hensivo eiion^li, the act of I Au- la , caj). S, ^^■a> afti'rw.nd enacted. The con; imianco • fail pio i.j kr aii.l 1 ,il!».|, we hiuc wi-ii, ur- KU'il llirir qurstinn I :<>f ili-vn (hou tanil niilrii t 'I'liry iiiUkI •irguc cTrry <|tii - , nv priiic iili » ivhii-li nrvi r m|iiir<' iin|>f t I Hi r ',)22 OPINIONS OF EMINENT r,AWVP,T?N'. invi^Dratc or iiiiplli'dly revive tlio patents of the justi- ei's, or coimnissions of the jiul,i;eK. This was a iiiis< luet whi'li r;.!U'(l tor reth'ess ; ar-l !,■ ice the statute of tlie 7tli and Sth of William III. cap. 27, wliicli heiiiL; local and noi reaching the plantations, was aft«M wards (■xlcn- dodl.'Vthe al)ov»> act of ! Ainie. cap. S. Another mis- chief deiii-,nde(l re. was enacted. This act is e\press- 1\ conlincd todr.Mt Uriiaiu, and not e\tendcd to the plantations. 15\ virtue of the provisions in tiie si'V(>ral statutes, f adiiiil, upon the demise of King William the proceed iiigs in our court- of justice were not ahtited or di-;continni'(| : ;ind 1 .d^o adu'.it, the eomiuissions in this pni\ince, ci\il and uiilitarv, were not d'Lermineil ; i»u( I hold tin; as semlil\ \\a- dissoI\'ed. 1 la\ out of tht> ease the .ict of 7 and S WiUi.mi 111 cap. !•">, n liich pro\ ides again-l the disselution of tiie parliament at iiouie. I presume no v.' idleman ol lr'j.al kn»M»ledtre will oppose it agaiii-t .in tiu' act heing I'Mal and not extt-nding to the plauta'io . I'he euiinnon law o|K'rat«'s till -u>pcnded or ahrogafed by stntuto : up^n the demise .u tlie Kini: the wrii of .-uuinion- ol the parliament, at eouunnn law, altated. and th'' pariiamruf was di--i<)l\ed. I a-k, upon the dmii-.- Ill l\in^ \\ dliani what >tatu(e prevenfc I (he :ih;itemcnt nr th-cdntinuanci- ot till' w rit I -ununon-i l'\ wiiiihthc as'y the act of 1 Anne, cap. 8.) which enacts that ail coiuinissions, civil and inilitnrv, shall remain in lull force for six uh.nths after the demise of the Kinn;. I f^rant the cominissionH of tlie Governor upon the death of Kinjr William did not cease or determine : 1 also -riant that the Governor is invested with the jx.w. CIS of siimnioniii^^ i>roro>ciiin,<:, and dissolvin;; the a.s- s.'iiil.lv: hut these concessions cannot inlluence the <';ise. When we speak of the powers „f the Covernnr tosimi- luon, proroLHie and dissolve, we ou,^ht to he explicit in niir ideas. Tiie (Jovenior haw noexchisivL' authoiitv in 'his dei)artmentof his „lli,-o : thewn. of ,.;nnmons fnran ;ts^eiiiliiv issues in thi Kin.n's name, tested only l.\ the (ii'vernur : (he prorM;,r:Mion is made in the Kiii-^ ),;ime and -'O is the dissdin, ji,., Th.'asseml.lx thm. \u-\w^ held !.y th(> Kin-'s writ .,f suiiiinnn-. whiif avails the suhsistinj,' commission nfthe Covcnior upon th.- point of Mhat.'nient or disr,^„timi- ance I '{'he wiit ;iimv- i.'.ate witlnmt alVcrtiiiir tlic < ;iii- un-sion : tlnT-'isno clashiu^' or repii<,'ii;nify : a siiii!- inon^ iiii-lit have issued fop ;, „r\v assemhly in Mn- nam,. "I'<>'i>rii \nnr. and ever\ pouci nii-ht have Imth .-x- ri trd coiiscMptctitial upon siii'li cciuinissjou. Tlic ai-iimrul caimof !„• rest,-,! upon the Lrcn.Tal op. 'latiMi, nf ||„. (i.ivrrnoi- < conunission to sniiiinon pro- roiriie. and disM.U,.; f.,,- ihi-e p,,\vers u ith iv^p. . I to ''"' !"iiiia.ii,.i,t at I ir. npM,, H,,. drmi>e of iIp- Kin^' di'voive up .11 III. s,„.(."SHor : yet, at coiiiiuoii law th,. successor could nnl j ,. d upon a writ oi ,. ni.ais invarded in the (i|nr of (j,, ,,,-..,u.,.,.^^,,... ,\.,, ,,,,,!:..,....,.. 1 1 324 OPINIONS OF F.MINF.NT LAWYERS. f . ' «i-»S*i«a£ J-'-M i^ (lis.-olvod, mul ii lu-w "wiit i'Siud. ! ol)si'rvc(l the ron- ♦ iniuiKci' III' ;ill lUDci'ss in the scxcriil ooiirts of justice (h 1 imt jircMut :i (IciciniiiKitinii ol" the coiiiuiission of tlic jii'lu'c^ iipiiii the iliMlli (if 111!' KiiiL;-: iiiul yet no pro- cess ciuilil he t'\('.ulcil wilhnii! JikImcs niul oiticcrs. Up. on \vh;il iiriiulnic lihii -liiiU ihi^ iiieri' ('oiilinnimce of a (■niiimi>>-i.iii iii\ i'j.iii;itc :i iii'dccss. wliicli, ;it ciiiuiiion hiw, upon (lie cvciil ol'llic l\ini'" (Icalh ccMsc'il iuid deter- mine il ' l>iit 111 iii'Uli'iii ii c'l-^*' iiKUr ;ui:iloj:oiis to tlie ]ir»-(Mil. 'riic ; iiiliitc I'l' Iviwanl tiic Si\lh exlciuU'tl on- 1\- to 1 i\ il 'iii(-: : 'Tiiiiiii;!! prdfccilln^s were h'lt as they i^Iii.mI III (•(Hiiiiixii l;i\\. ••111(1 upon the di-iiiise of the Kinu; iiliiitrd II,- di ■(•(.iilimicil. 'I'hc act <>[' ~ and S WilHani iil. cap. 'J7. c'oiiliiiiu'd all (■ ol i!ii- in tin' liini if Anui'.and providi'd aj^ainst tlio ini^ehi( . hv an I'Xpross staliitc. 'I'lie conrt of King's Hcncli is anthori/.rd hy i'onnni--ion to issue criininal process: thi' (loxcriioi' wa- aiitiiorix'd l>y eonunission to issue a writ of -unniiDii- : tin- ( riminal ]>rocess issues in llir Kill;; >^ iiaiiif. Ir>ltil li\ lli.' loiii t of M. 15. The writ of -iiiiiiiioii< I'm an as,-einM\ i'--iud in the Kinii s name, tested li\ thi' ;'o\ crnof : i lie louiiiii-^ions of the judi^es ol If II, sultsist after till' liriiil-r of ihr King the eom- inissioii of lite (lovernor al^o -iili-i-^led : hut upon the r\»'nt ol the KiiiLj's deatli. hetoic ihe sta'tite ot Anne, thi' criminal proc»>sf< «'ea>-ed and dei.'iinin"' :. and the oi»urt of Kind's Ueiich couhl notpionrd upon it. What hhall prvvent ii lU'torminalion ot the wni ol Nuinmons or *-■• OF THE COLO.^iAi'j CONSTITl iiK.XS. warrant, after proceodinj^H upon it / Tlie Kini;", in ju(]<,Mnont of law, is a body politic, to pi;". cut aw intcr- rcjiiiiini. Tlio ])owi'rs of ^overnnicnl lwt r- of l^ov- ernnient deleicated to the (jovermir. upun the death (tf the Kin;i- determined with the (iominis^ion : and ot'eon- seipieiice the pDwer to siunmon, iimroiiue, and dissolve a^send'lv, ceasi-d. After tlie ahovt- aid (d William, the connnissidu oi the (lovernor did not iidl upon the. demise of the Kin^i, hut remained in force for , i\ monlli--. I'p- on the event, then, of Kin;; W'Uiiun's death, the power to sunnnon. pi-eritijue, and dissolve the a^seinhU did not fail, hut >ur\ i\ f(l and existed in the {lo\t'iiior as ,i s-d)- si> ting power undeternnned. The power to summon, proro;:;ue, anddis, as a ;-:ili-i.-tin;j; power to the succeeilin;; monandi : the ]) iwcr to um- mon. proid^tie, and dissolve the as.-eudil\ of this pro\ - ince. wa> handed hv statute law, upon theileuuse of thu Kinir. a- a suhsis' iujj power to the (lo\. iiior. Ihil the sncct-ediu^ monarth. not w it h-'andinii; the siihsi>tence III' the |inwei- to sinniuon, proioj^iie. and dis- >ol\c, e;!iniot. Iiy eonnnon law, pi'oceed upon the wiit of .-ininnonv 1.- iied h\- his predeces-or .i tie-.ii uiit of sunniioiis MMi-t i-siu>, and a new parlianniit uui-t he ("ailed i!id (he statute of William e;ive a i:reater lati- tude ' t he sul)-i.-tmu }>o\\er of the (io\einoi.' I I.e -tat, !«• ol W illiam, cap. 21. is enaeletl ni ;;eneial ■1' IV2(\ OPINIONS OK KMINENT LAWYEHS. ox'pi'ossioiis : all coimiiissioiis, civil aiid inilitaiy, sh;ill roiuiiiii in full lorci' lor six inoiillis aCtor the death of the kiiiir. My lord ( 'okc oliserves, in the construction, of a statute \vc should always :;dvert to what the nii-chic f was at connnon law. Bct'ire (he al)ove statute of William, 1>\ the cninni in law. all patents ef j\istices. conunissions, ci\ il ami milita- ry, well" detcrmini'd l>y (he Kinji's death ; and the de- feet oi' mischief was the anarchy resulting' iVom (he want of olficers to |)ut tlie lawsin execution. 'I'his. tluii, was the nnschicl'tlie statute meant to provide aij^ainst : ;ind as (he same auiii'chy, upon the ^.imc evcnl, pre- \aileilii, the plantations, theact of William was cxtciid- ed hy the 1-t Anne. cap. S. Not a .--yllahie is dro})t \\ itii respect to the parliament : nor is (hcic an\' ;;rounil what^nc\ci- (o infi-r (hat (hi' nrexentinu; ol' a dissohitiou of the paili.iment upon (h(> dcmis(> of (he Kiie^- was an ohji'ct in contemplation when the ahove statutes Avcre I'ramed. 'I'hc di-solution did not spiini: from tht> deter- mination of commissions : tlu' continuance, (hereforc. of t'onnuissidi- was never meant as a jitop to paiii uncut. The ceiehrated IMaekstone lays down the law. that a parliament may Ite diss(,lved hy the demi-e ot' (he Crown: for (he Kimr hein^i- considered in law tlu- iiiad <'f (he pai-liamen( -r,ijnit. pri in-i^)iinii ,f fr'ni-v — that failiiiLT. the wli.ile ]\ih\\ '[< extinct. \\ Idle ,lie pio\ ince was in the hand- of thel'rown. I ask who \\:\s cf/ituf, priHcipiniii . /_/////v of the ireneral a--eml)i\ ' llieknij;, or his ilepiitN . the (io\ cnior ' I aHirm not the e considered at mput, !•// jii iii,ijuii,,i : for (Ih- a>semlily co iinienci'd iind wii.s held l>\ the Kiie_;'- writ .i| '-niuiuon te-ti-d only hy the (io\iiuor; nor upon an\ principle i an he Iw <'i)a«iil- np THR roI.ONIAI, CONSTlTUTIiiNs. 327 crc'd '/,' /////v of the froncral ius^«3iiilil_v ; I'or upon the (loiitli, or removal of ;i CJovornor, tlio asscinbly did not, ill law, ('(.'iise and drtorminc, hut was kcjjt alive by thv.' Kiuii's will and siihsisted. Only th<' Kin--, then, could havf 'in'v\i r,ij)i/f, prii/c/j/hi///. ( f ^p'/ii-s ; npon his dennse a di.-.soh'.tion Inllowt'd. The colnny ofN'ii^inia was in the hanils of the 'Jnnvn, as well as thi- jiiuvince, in (he leign o " William and Anne. I'l.on the death of King William tlie assonihly of \'ir,L;iiiia was dissolved : a fresh writ nf sunnnons issued, and a new assemhlv was called: the siil)sistiiii>- ciimiiiissioii of the (rovenior, hy virtue of the statute of A\ illiam whieh eontiiuies all commissions, civil and mili- toy. dill not previMita dissolution; and, sol'arl'niin onter- tainiii-- any >iirli idea oi' the statute, the ;Aeneral asseiu- lily afterward', in the fninili ij,(ir of (^leen Anne, passed 'an act lor the continuing; of ui'ucral asscmlilies, in case of the death or deiiiist> of H,.|- Majestv, her !ieir>, <'r successors," i^c. Had the statute of Wil- liion aiiorc extensive influence in M.uyland than in Vir -inia ' or docsit operate dil!eieiitly in dillereiit .'ohjuii'.s? lla\ui;j; then oliservcd t hat the asseiiihivof this ])ro- \ iiice wa-diss(.Ucd ii[)on the death of Kinir William, and lliat the writ of summons ly which it wa- held wa.> dis- coiiliniied or aliatetl; I now la\ down the p isitoii, :\^ a fund u.ieiilal iirinciple, that a parliament cannot helei^Ml- ly ions eiK'il without the Kin;i;'s wi'it of siiininons. And I till lli"ia--ert, that, h_\ the undolited con-litiif ion of tiiis prvince wIumi in the luiuds of tlu' ('roun.no laws could he enacted without the consent of (he freemen lc<:allv lalhd loiie'tlier and assemhh'd l(\ the Kind's writ of summons: I do nut expect to he contradicted in this assertion of the law; hiit Itie tiict is stated uri iij,(hsiui OPI.MONS OF EMINENT LAWVEFiS. R ; S Williiiin: hd I'lt'sli writ of i^ummons wns issued. By what; jiiuIiDiitr, then and upon what constitutional ground, was tho assenihly convened, whi(di enacted, the contested law of i7ding ses- sion, the death or ilemise of the said Charles, Lord Bal- tinioic, H' iwiih-tanding. What can be a ele.u'er proof that an a ■ein''ly disstab- lish the several conventions ns legal parliaments, and to cme the delect or want in the King's wi'it of summons. 1 1' these cji.ses. how eviM' ,;ue urged against me, 1 shall onh r'pl\- in tic l.ingnage of an einineut saj^e nl ttie law upon thi--nbifct : they arecases foiin or from the act <,f 17(33 ^ or ti"'i'i the act of 1771 .' whieh of thoeacts communicated the ..bligatory virtue / Tl at succe.nve assemblies have presumedanexisteu.-eoftheact of 1701-2. I ireelv admit; that the above several laws recognize it as an act iii lorce, by reference, recital, and .-uppleuientarv provis- ions, lalso admit ; but, that suny legal principleofe,,n- (ru.'li..i,. am.anit foacoulirma- t!on, I nmst tak.« the libeity to dvia. 1 presume 1 may safely assert that the act of I 7u 1-2 has never been rc-..na<'tcd; but Ihe advocates |i,r this actin- Hst that it has been .■oulirmed: the p.,,--ition. then is tl'is. thattheactoflrof-- ,bo„.h v.id a/, i,utio,\y^ I'cen conliruic.l by :.u,v..ediug laws. JMvry .••mlirma- tion nuHt be expressor implied ; I r,-,u find no succeeding law. whi,.b ..vpre.sly eonii, ;,m the a- .ii>tiu., ,.,..,„ .M,di iiuplieatiou. I lK.ve nut. indeed, uith :, uu^Kun. po.fa'ion, l,ye.s ,n-in. |v.v ul,n„,un(: subM.,uenl l,,ws raneel .uid r.^peal pnred- 'Mglaws: but this UMxin,, b, fVom ^upp,:,ting. defeats the assertion, It is an e^..bli.hediule.„l..w .hat statutes b.v.. .... 4o • Il""' smi OlMMONS OF EMINENT I, AW VERS. loti-nspo.'t ; th"y look lorward onlv an.i ]irosciil)o lor the time to coiiK" ; for. np-m no i^-iiu'lplc <■!' uiitural justice, can a man's actions lull as-Mup nisancc of a Irav made and cnactcl './■ !">^\ ' : , v. iuMi an act. origi- nally void, is coulirm-l '.y n after act, the a<-t. thus con- finiicd operates a!, inifr, amlattaches upon the time mes- ne, the coinmeuc't, and ccmiirmation of it : and, therefore, the act eonfirmini;' has a clear retr(>s])(-'ii> " P' ^ t. By tlK' act ol' 1701-2 many painsand penalties are inniosed: the first iict. ndied upon as a confirmation, is the act ol 1701: three years and upwards then, had the act of 1701-2 re;'ept mi-ht have heen lawfully broke without appndieiisinn oi'paiii- and penalties ; hut if the act of 1701 operate-^ as a coiilirmaticn. every such breach in the inter\ d. thou(iclc- 7i(is, which, in substance is, statutes have no retro.-<])ect: when an act. therefore, is oriiiiually void, the law will never woi'k a conlirmation, by constru^'tion or implica- tion. An act of parliment. indeed, when express ui»on the point. I admit will bear ilown the law and principles ,,r justice: but, when iin a.d is not plain and express, no (■xpo^itio^ can prevail which i< rcp-,i;:naut to natural riuht and e-^tai»lished maxims. Amoni,' the old statutes wt' meet with a«'ts recouiii/ed that are not to b(^ fnnntl on record; tlu' vecoi^'n.itiou of them by succeedin.i; law i^ j::ood eviU(di statute unco existed; they are received and prevail as statutes, r^ ME COLONIAL CONSTITUTIONS. 331 not as lij'toil up or aiiiiuatod by thcstatutes wiiieh reco^-- iiizc liicm. hut as oiijrinul statutes, made and enacted npoua constitiitioiial foundation ; the recognition operates only as presumptive evi(h'nce of the fact. But when we ciin ;,'o hacknnd lay our hiiiids upon the very statute it- self; wIkmi e c;in tra<-e the foundation of it and show it ori/^inally void from the , learest .irrounds, what avails a nuked reoo-iiiition .' Kvery presmiiption ceases when the contraiy is pro\ed. It has heeii ohjected, that, upon a supposition of the nullity ..f the ac^of ITol-li the act of 1700 must he exist- ing ; 1 have no such conception. If the act of 1701-2 was void (tJ, iiikio, the act of 17d and actual. vestc(l > Sni'el\ the cli'rirv ot'this i)rovince are not a bodv politic with acapacit\ f-i take by succession: nor is the forty per ])(>11 a trau-ini.~-il)le right. Tlu. saving clause, with respect tn the lii^hls of the clergy was spent up(m tlie ilropping of the :ip[)()intments or inductions which Mere then in being. .M_\ opinii/u then is. that, upon the demise of King A\ iiliam, the as>euilily of ihi-^ I'roviuce was di.sjioh ed ; th.it the assembly which alterwards met and - na'dcd i ' W 'I \\ I ^1 '^90 OPINIONS OF EMINENT LAWYERS. the contested forty per poll law, being called without a fresh writ of summons, was illegally and unconstitu- tionally conveneil ; that, therefore, no obligation can re- sult from the said fortv per poll act, as a law. "Will. Paca. August 1"), 1772, Fifth. Of the want of .sovereignty, in t!ie Governor and Council, and Keprasentative ))ody. when met in As- se n\l)lv (1.) The opiniou of tl:<- Atfometj-Geiuval Harcouvt, on the irnproprietn of an art ef recognition of Queen Anm-. h>j tlie AsseniH;/ of Mariihtnd. As to the act entitled -'an act of recognition," altho' the sai.laet be an instanci- of the fidelity of the inhabi- tants of this province; \et, in regard the said province is entirely dependei.t .)n the Crown of England, and no such law has been thought proper to pass in England, since Her Majesty's aceessi'.n to the Crown ; I humbly conceive such a law was iini)roper to be passed by the assembly of this ])rovince, Sl.M. II\R( CURT. Sept. IT, 17117. r ^*.^m OF THE COLONIAL C0N3TITI; ;•:'^^'s. Q9" (2.) TIlc opinion of fhe h.olicitoi''U on thclimited effect of mi oH o Thomson, A 9 ni'J.f* To iho Rigiit Honorable, Till do and Plantations, li.itrnVi- iion I> V tfii theL lOn. U|),S \,'(, i^'sioiiors for ps I'onjiiKuid.s. .signified ler May it please yonr Lords! In oiK'dience to your Lordsh ton.el.y William Popple Esq!, the 10th oC Deroml last, I have considered the bill to naturalize Jacol) Ar- euts and his three children in Nev Jersey; and as sueli naturalization can have the effect to -iv-e tb.oni a riirht toen'')y the privi:eges of natuial 1 province only, J do not sec any o])jection to tL. ^ thi- ict, since the assembly there think them proper ob" jorn sul)jects in that le passuu ^ jects of that favor. March r, 171S-19. WiM,. Tfiomson. (:l) 7h,oj>in'v, of the Alt(yrncy.(hnorol Mun'a,i, on the qucsiion, ichether an a%mnl>ly rai} i>njK>^e a ,Ii,],j on the iniporUitioo of convicts' into a colon >/. This Stat, .to, 4th Geo, I, c. li, for the more effectual transportation >f felons, Iter recitin- that it had been * In l,;3,s, Ooveri.or Nico'son, of Aluryl .nJ, wr,,.,- tl,e U,-„xl of trmlo ■■ tl.at l.o always an, M a ;,rnTiso tob* in^^rted in the «,-,. of nahiralimion, that ih.y .1m..,1,I not o,^rate ni::„nst th- statute of* a.ui S Will, 111.' (;,,.., ,,„,.■ Sty.p...,,- or th.- same ,,rov.,..,-o, ooscr-tj to the ,. a„i of tradr, upon «„ art of nanuoli.a'io,.' of .1,.. ivlarylan.l a^.^mHy, 1704, ■ tin, is only ,n...nd«l ,o .n„M. ,|„. ,„,„i,.s to .uncliase lan.ls, h„, no, to 4uahfy th,.,n U. trade, or to ^c owners, .h m.,.s„ rs „f.l,ii,.s, a b-ir..^ always uckauw.,.,l^-r,l,tlmt any art of Datural./atioM, ma,l,. i„ ,l„s ,,„vinr,. «■ ln„l. not l,..yon,l ,t, l...;nt. •-•.rcumscr.bcd by ,l„. 7 an,i S Wiil. li. for ,„-n-,„'„n^ Iraiuls III tilt pliuitaiion trade. " 'I tl ^': v^ ^M OlMMii.N'-- OI' EMINENT LAWVERS. found Itv i"\[K'ric'iicf that tho pnnishniciit- intlictod by tl'o law- a<:iiiii>t till- oMVii. .- therein oiumuM-'^ed had not provod clliM'tual to deter ihtsoiis from ll se erimes: and thai many otieiuh'rs to wlioii. loyal mercy had been .-\tended n\nm r.aidition of tiaii-iiortin^' themselves to \\\r \'\\-I Indies, had often iiee convi.'ted of tlie felonie-^ theivin ^l".rcliied it --hnidd he lawful for thec'Urthe- f,.ir wliom th>'y were <'nnviited to order sn(di olfenders to he senl I" -'iiie oHIi^ Majesly s colonies an*.-«i.uns. [\>v >u(di terins. 11 :d>oena<-ts, that mlIi ...ntrartor shall. previon< to thr d. li>ery of .Mich ..ll'.'ndri- to !iim, to l>e transport..!, giv.; sntfpi.'Mt seenrit.N, t.the -atiome of His Maiest\> cnl.mies and plantations in .\iiHiir:. as ^hall be ordel-ed by the said eom-t. and proianr an autnentic certifioato from tiir (Invei n^r oi .hi.f ( 'u-inm-;bmse ..|- Wvw i\ lh< I'h.ce. (uliich ..■rliti.'ate thev are thn-hv ,.,,,, „i,,.d to jjive fufthwith. NMthout fee or rewani, as soon as e.nivenicntly may be,) of '1h' tandm- of mi. h ..f flMulersso transferred, ...^ aforesai.l, in tl at pla.'c whereto they ^luiU be ordered, (death and casualtien of tht »ca mi t.K TiiK COLONIAL (.o.%bjr:iniu.\s. SSP) excepted,) ami that none of the H.iid oll'eiKhTs shall he . siifleivfl to return IVoin the sai.l I'.lace to anv i.art of Great Hritain or Irelaiul, hy the wilful deliuilt of .sueli eontraetor or his assi^fjis. This statute likewise, oth fie... 1. <<. '2:\, lor the more ellectual tnuisi)ortatioii of felons, e-iacts. that all eluuM.-- es in and ahout Makiiiir the eontracf<. takin-- se.iu-ities, and eonvevin.u of fehuis, in order to he traii.|H,rlr,L Mhall he i.orne in-earh ••ounly. rid. ii-, division, iihi'itv, or plaee. for which the court was held fur ordering such felons to he transix.rted, an-l diivrls tlie luannei' oi' the nayuKut of it l)y th-ir tre;' M;rer to the contra. '(oi-. A;,'recahle (o these statu!. ■^, >uch c.nitra.ts ii,r the transportation of feh.n-^ have hithcit.. hrt-ii ina.l.'. the expenses (here.. f 1)1)111,., su.di h.-mh e\e.-ntc.|. and su.h certilic:ites .if their landinj:' ahr.'.'id pm. ui..i; hut tic iiicr.diant. wh.. usuall\ .'.aitra.-ls upon this n.ra^nii. ^.^^ ii.^w recejv.-.l a.hi.c from his citrrespnii,|,.|,t ;,( \,\;u-\. lau.I, that tii.-ass..m!.l_\ nf that .■..|.,n\ have ihip.iMMi a tax i.f f< riy shillin-s iip,,n vvviV e.tuvic! I- h,. lau.hil til. a.-. Su.h V. It. • of (hat a^srnihl\ uuist iieee.ssaril,\ pruihi.-o "ui- ot th.' - tw.. .ouM'.pi.'M,,.., .ith, r tliat th.- courts '"■'■'■ '""-' ""' "''I''"- III.' I.'f.n- t.i !„■ Iian^p,,rtc.l to .Mai\i.iu.l, .>r an\ addil i.iii.,l .-xp. ii>c <,f |,,||\ dnihuu: \>rv head, t.. he paid ly tlir IreaMu.a- <<\\\iv ■• uuIn, \c. fnmi wlu-nce .su.h f.l.ais shall Uv Iran-p..! l.d ,,iid w hi.h expense, .so hir as relatis t.> I .|,,n Middl.sox, andthu liunie circuit, ( from uln.l, phice.s the trauMports are \'T\ nunu'rons)His .Nhi|r..t\ han heen p^raciously pleased I" take upon Inmseif and t.. pa\ .ait .,f hi. ,,xv,i pin-.' V««'"(. Ha\e the a,^i uiltl\ of that, .f the .'onvic-ts being landed there, without luyment of such tax .' lam ofopiuioii (hat no coU)ny ean make such a law, l,ccau-('it ^eclnsto nu' in direct opposition to the author ity of file lurlianicut of Great Britain; hut tlie charter ,.t" Nhir.\lauct ri-ht hy a proper complaiut of the law it.>ilf. and Mr. Shari»e seould he acjuainted wilf it, i„ ,n'lature of r.rcat Ibitain. I'.y the ^ame n-aMUi tlu'y mi-ht la\ a dnt\ up:M\ oiM'wa prohiliit British -(.oil-. Wll.l.. Ml KIIAV, Ma\ li. 177"'. (1 ) Mr. n'cW >, ojii III' n ">' I'"' '/'"'"'"' "'""'/'<-■*'•'" imuth^ ,iiiiina,cid idienin Uic Cruwi, i»hJ>l './,nillh. U(t o/t'iC /'riiusijiraniu Assnnlilij. To the Ui-ht llouorable (he Lord.-. Uonnnis.-,i()r-ers for Trade and IMaiitations. Ma\ it please yi»ur Lordsliips ; Inolredienee to your l,Miibhips' eonnnaiul^ sijinitied to me by Mr. SiMMvtary I'opple. 1 have j- iummI theehar- ter of rennsylvania tmnsnutted to me, and iKuticularly (■onHidered those ehiuses tUen-iii nhich relate to th»' powers of enaetiiiK laws u\ that pro\ in.-. ■; and in an- swer to the i\r^^ (juesticm wlm h \ nur l>.aii>bip.- havc OF THE COLONIAL CONSTITT'TIONS. 337 boon pleased to propose to me, 1 am of opi„i„„ that there is nothinjr in tfie said charter by whi(d. the inhahitnnts of the said province are proliihited the re-enactins, in their j,reneral assembly, the substance of any laws which inay at any time have been disallowed by "the Crown. As to the second (piestion, likewise proposed by yonr Lordships, I am of opinion that the six months during which any laws passed in the said provin.v are n>].c;,la" ble, are to be counted from the time of flicir bcin- .le- livered to the privv co.n.cil ; nnd thercf,.re u.des's the M-entsof that prnsince do d.diver duplicates of their I., .vs unto the privy .■oun.'il at the same time as they arc dcliv.u-ed unto your I.ordships, the tinu> during wbi.'h they remain uiili your Lordships can mak.' no part of the six Ui mtl.s ; ',„t the said six months must in such case be reckoned from the tinu- liicv arc deliv- ered to the privy onnci! sulv< approval or rt-pcalof the Mast- mdni-'^ittx (irt-i ((/miiumtil. Tntlic Hi-ht linnoruble the l^ord. ('ou.m,>., ts for Trade and riautationn. May it plea» , Inobclicn." to vnnr Lordships' romnmnds, signified to us by letter from Mr. l»oppl f the 31«t of Mav last, trnnsmittingto ns ft udo.cd extract of the charter of the MassaclMi>,dt>-nay, and also of the (iovernnr'n in- Mi S38 OPINIONS OF EMINENT LAWYERS. I M i m stnictions, and I hereupon desirin, 1721i. KoB. Raymond. 1*. YOHKE (G.) Thi oi>(iii"ii "f thr Attonx ii-(n )i< ral. Soiihnj, of' th, IhI'I ifects of trmpovanj ,ui^ of A--^hips; In (.lirdi.'ii.v tn your I.onlships' .'ommands, sipiificd to mc l.N Mr rni'I'h-,1 liave cou to law to be made in tlic pr<.|iii(.tar\ iilantationi- \ :iii:('rii|.iiii<.ii,that mi\- preparing ituactof pailiauK lit toMipply hi> in^apacit w and toalter the lllelliod complained nj'as to tem|'inrar\ law,-, am! thi' time limib-d lui tiaiKunltiiig and approving laws made liieie; but during tiie la-t -e->ion of p.irliament, a bill lUi- tiiat pinpo-cd at New Vori\, en'itletl an act for decliir- ing the illegality of tiic proceedings against Col. Nich- olas IVi\-,ird and .Vlderiuui .Tohu Hutchii' ', for pretend- ed hi'ih Irt'ason, and for reversing and making null and void the said judgment and all proceedings thereon; and ilo Innnltly certify your lioru^lii|)s. tiiat Her Majesfy ha\ ini:, l>\ KHi/ I'lilliot, oil 'III- jioir, r ni ij,, .\-^^< iii>'l if of To the Uight Ilon()rai)lc the Lords ( ',Mllmi•■^;(lll('|•s I'oi- Trade and l'iantati(ins. Mav it |ih'a- c yonr L!)i-d>jiips ; 111 uhciliciici' to \(tiir Lordships' coniiii.tiul- ^ioniiicd to us li\ two letters from Mr. r.-pplc. tran>,iiit tiiiu to us copies 111' the charter of the colony of < 'oimecticut, and of ihe mi-morial of .lolui W'inllcrp Km|, hereunto auiicxed, and desii-iiig om- opinion in point of law, whether ihe s;,i,i ,-,,|oMy have therein any power vested uitheni of making laws w hich atVect |»ropei't v. in themselves and not contrary to the laws of Eiigland ; and if any laws have been there made, repugnant to the laws of England, they are abso- lutely null and void. P. YoRKE. Aug. 1, 17:i(>. C. T.\LnoT. (n.) 'I h, opinion of Mr.Laml) ou a/c i/sin-ped A-s- setn^i^U ill Su'ith Ciiruhiiii. To Ihc Tviglit TIou. the Lords Commissioners for Trade and I'liintations. M\ Loids In [)Uisuauc(' oi" your Lordships' connnands, signified to nie liy Mr. liill'< lettei- of the *Jd insta.at, wherein ^■ou aro pliMsed to de.>-irc my opinion in jioint of law, up- on ilif rollowing act, ])ass('d iu Soulii Carolina, the llith Oi" l'\lirii,ii \ . 171'.'. 1 have perused and considered the same, vi/- ; -an ail for rcguhiting the comts t)f jus- tice." This act is of a \ery cNti-aordinary natinc, and, was it now sent over lor His Majesty '.s apitrobatiou, I should make iikui\ oli'|ei'[ioii> tiirreto; hut, as it is not sent over for that |iuipo-e, I .-inll omit those oDJections as being unnecessary, and ouK ob-ei \e how tiiis act apjiears to me, whieji 1 liiid to ha\c been pas.-ed in the time this province belonged to l!ie l.onU i'roprietor.<, Imt tlie sanu' has never been n nliiiiieil b\ tliem ur the Ci .vn. And the time it pas.sed was when tiiis pr«)vince wa« in great confusion anil the inhabitants opposed tlu; ])ov\i'!- • >f Ml. Johnson, the Governor then a[)[ioiiited b_\ the or THE COf ONlAt, CONSTITUTIONS. 343 Lords Proprietors, and chose a Gov. themselves who passed Uii.s act without any authority .'^o to do ; and as it appears by Governor Glen's letter, without the proper consent of the other branches of the legislature, the asseiul)ly hav- ing before that time been dissolved by Mr. Johnson, the legal Governor. lam therefore of (tpinion, that this act wiiich was obtained and passed by an usui-ped authori- ty, should not be considered as a law; and it apj)ears by Governor Glen's letter, it has not been considered so by the practice that has been in use since then concerning matters contained in the said act. As to what is con- tained in Governor Glen's letter, about removing one of the assistant judges how far he has acted in that respect conststent with his connnissiou and instructions and whether there was sullicient reasons given for so doing, nuist be submitted to your Lordships, lioui the informa- tion he has given you oii that head. Mat. L.\mb, May 30, 1750. (In.) llic opinv)\t of Mr. Jutiu\ o i the s'dia; topic. To the Uiglit Hon. the Lord- Ciuunii-sioneis for Tiade ami FlMiitiitiiius. Mv L(M(ls; In obedience to youi' Lordsbi[)>' (■i)niiii:ind>^, signified to WW b\ Mr. I'opple, I have cou-ideri'd :in act pa-^scd ill Caniliu.i, duiiug the go\tiiiuient of the LonU I'ld- prietors. entitletl '' iin ait iclating to the biemiial and otiier assciulilies. and regiiiating elections and members," by which act. 1 oli'-erve. that tbert'i-:! ji wcr ;:i\(ii to the assembly of this colony to nicft witiiout tlic couscut of the Crown. The <'li;n-ti'r granlcd to the Lords I'roprie- 344 OPINIONS OP EMINENT LAWYERS. toi'H does not in tlio least Avarrant a ])roceeding so de- rogatory of tlie [lowei- and authorit}" of the Crown. The power orcailini;' parliaments is adnutted to Ije an inhe- rent j)rivik\u'e in the Crown ; and I believe this is tiie first instance that such an attempt has l)een nuuU; to de- prive the Crown of it. 1 think your Lordships should show your disapprobation of a law, which in so hiuh a des^ree encroaches upon the prero.i^ative of the Crown ; but I unist observe to your Lordships, if the facts are true which are stated in the memorial of Mi-. Smyth, the Chief Justice, 1 think it cannot be considered as an act in Ibrce. not haviuLi; received a due conlirmation, agreeable to the rules settled by the Lords Proprietors themselves. FUAN. F.\NE. April 1, 1 7:57. (11.) 'Ill • iijiiiilni} of ill e AffoDuij cikI Sohcltor-liips' connuands, siirnificd to as by letter from Mi'. Popi)le, hereunto amicxed. we have con.-iidered the manner of passing the act of reve- nue, .sent to Lord Colepcper, in the year l(i7'.>. under the broad .seal of I^ngland Wc have likewise pcni.scd the e\ti-act of (lie counni-- sion granted to the said Lord Colepcper, bearing dale the Cth of I)eceml)er, 1079, and the extract of Colonel Ilunter'.s conimis.sjon, Itoth which have been triin>niir- dl' THE C(iI/)M.\h COXsTITLrMNS. ur t("l t ) ,is l»y Mr. Popple, and In- tlicni it appor.rs tliat liie iiietlifiii ".i')\v i;-. \ i;i pasrinL •xtroincly ilifTercnl I'min what it By Loril ColcpcpiT's rfiiniiiission. tln^ Governor aii( il al Viri^iiiia, aiv to lnv hofoiv Jia' Kiuu- inVoiin- ;Mn;- lor \ iriijniia. i.s was ill the year 1070. I •oiuir nn n s •il lu-ro, .-iicli l)ills as sh:ill 1,(> proparcl (or iiials u>\v law.s i'lr that ^-oloiiy. in onK'i' to haw tlu' sovereiir ijiprohatioii thuch as- soiiildy) it hi'coau-s a law I'rom thfiKa.rortii. until it shall Uy ix'pcah^d hy tha lilxo ni.ahoil and authorit\ : hut. hv llic <'Oii:-titiition which scoiiis nnw to Ir c'asithoi- to eoidirni he I'lnner of fhe-e wars for eiiarlin':- new 1 IW; seems lo lie the ride thai must 'xow^r cn^'r. eouiaa-iiiiiu' I hi' -aa! art of rry p. in the pi-escnt ^>ed eiiue whic'i iia m '.I liiaha- I oi-d <'o] I iteperV ;;o\iaaim(aa. and the '>i"'ii'"i ihat \\-,w then t.ajviai for passini^ that •wt ap- pears to hediiecti; opp..-ite lo ih(> said method that nuiilit tli.n to have been pursued ; for the hill was ori,!;-- inally he.nm here in Knirland. and ir'>iii liin i''o traii> mitt ed mider the great seal ol" Knuiand to ti le general assemhly in Virginia ; there the hill was not assented t o as was transmit 'II Ian sva-; reinrned haek w ;th t wo I n IMAGE EVALUATION! TEST TARGET (MT-3) W // / S" ,!^\^^ y. 1.0 Ifi^ I.I 11:25 lllll 1.4 1^ 22 1.6 "/a W '/a ^^y /^ Sciences Corporation 13 WIST MAIN STIKT WHSTiR N y I )I0 ( 716 1 177 4^01 % « o".^ ^fi^ 346 OPINIONS OF EMINENT LAWYERS. 4,1 provisos added thereunto, which provisos being made part of the said l)ill 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 provisas was ratified and confirmed by the said King, and the other proviso was disallowed of and annalled. On consideration whereof, we are humbly of opinion that the ratification and confirma- tion of the said act with one of the provisos only, did become mill 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 o-.ily, we conceive it may be for Her Majesty's s'jrvice to have a new bill pass in the general asseml)ly at Virginia and be transmitted hither for Iler Majesty's approbatioii, pursuant to the method prescri])ed in Colonel Hunter's commission, which will take away all doubts concerning the collect- ing and payment of the said reveuue. Dec. 23, 17(»7. Sim. Hah(()i rt. Jas. Mol NTACiTK. (12.) The oit'minn of the Att'^ritf tj-di lurti! N(>vth< >i, that iuin nhoiiJti }>t takni fi>r tlic rtijtiJur tr your l.Htrdsliips. In obedience to yii" l nrdships' order of reCerence, signified to me bv Mr. I'oppie, by his letter dated tjie 14th day ol' February last, I hiive ptMiiscd iind consid- 11 .it OP THE COLONIAL COXSTlTCTIONS. 347 ered of tho inclnsed act, passed at Barbadoes the 8th of August, 1706, entitled "an act for the better enabling the executors of Cln istopher Estwick Esq., to pay the debts of the said Christopher Estwick," in which act it IS rected, that Richard Estwick, gentleman, having two sons, Richard a 1 Christopher, and two daughters, Eli- zabeth and Anne, deWsed one huif of his real estate to Richard and the heirs of his body, with cross remaind- ers entad among them, charged with the payment of his legacies, remaindoi. to his two daughters entail re- mainder :,. fee to his widow. That Richard, the eldest ^«)n, dying without issue, the whole est^ite came to Christopher, and that he having made his will and ihereby made some provision for his only son and two daughters, and made several executors, and not having i"llv .l.scd.arged his father's legacies, died encumbered with debts to the amount of six thou.sand pounds; that the said Christopher was also seised of several negroes -rhis own purchase ; that the creditors hadc<.rMmonced aMdtl,reaten..d suits against his executors for recovery "f then- debts, whe.vby his personal estate and negroes were n, danger of being wholly extented and sold to sitisjythem; and if tlu- negro-s are taken uff from the I'lautation whereof he was seised entail, the plantation would Inrouu. ,.f little value to the son, which could not Ih- i)reveMte.i by any way but by applying the whole prolits ..f .he estate to di.seharge the encumbrances, and ly allowing tJie creditors interest in the .nean while at teupereentand that the exe. ut..,s did e.-n-eive that tiiis way the estat, would in all pn.babijitv be preserv- •■'• '■"•"••■ '""' '•'■'•l.'are.l by the time the sun should come "t^igr ; au.ltheivfnreit is .uriete.l tllMf I Ke executor be »-iupo\ve-ed to apply the profits of the whole estate Urn- .r ^mi I L , % ■ ;U8 OPINIONS OF EMINENT LAWYERS. ards payinont of debts iU)de;ioinnbraiice.s, and to ullow the creditor^ ten per cent, interest till paid off: whieh act, I am ul'opinion, is nnreasunable. in regard thereby the entailed estate, whivdi d- -tended to the infaid, and wa.s not <,'hai-- in this partieular ea.se that this aet was passed the (Sth of Aui/un/i (If' thr .stiiiK hlirif, r (III tin (^if<'/i's- poll', r nj r:i),llin,l tin ,l:(<(,j'th .\/. I ll/ll/ lu/ . I SM /nf'h/. To the lliiihl Ilonoi.dll.', the l^ords Coumiisdoners (i)r 'I'radi' and I'laut iliniis. May II phase your Lordships; In obi'diciici- to \uu'- liord>ii;,»s' coiuiuauds. sijiuilied lo me by M,. l'..|i[i|.- jr., 1 have considered .if the ,pies- tions uientioueii in the aruu'xed letter' ; and as \n the hr-t of the:u, vi/ : uhelher Her .Majesty do not siuni- ly her pliM^iu'e uoiiiii «'i^htei ,i month>, the suspe>idin;f OF THE COLONIAL C 'J.NSTIT'.TIONS. 349 a.'t do then expire, or whether the .s-une do reiuain hi lorco after the eiohteen months, nntil Her Majesty's pleasure he signified ; I amof thr opiaion. ti,e suspend- ing IS to continue ni force for eighteen months unless sooner determined hy Her Majesty's ,.h,,,.nre ; and the clause that no prosecution sliall he until the expiration of oighteen months or until Her Majestv shall declare her pleasure, I aiink, can have no other construction- and theretore in all events^ the 'act is ., ,h,(e-. -nh.e at the end of eighteen months without HcrMi.icstv's pleas- ure declared, and sooner if she shall so pU,is(> to declare : and as to the second .juestion, vi/ : wliether in case Iler Majesty do signify her pleasure for t!.,,. eoi.tiuuance of thissuspendingactfora certain time after the expira- tion . ''the eighteen months, or until Her Majestv s fur- ther j.leasure, the sai.l act will remaiu in loire accord- ingly, 1 am of opinion, all the power reserved to Her Majesty hy the act is to determine the a, t within ci-ht- tcen m.mths; hut Her Majesty cainml Wn her .leclara- tion continue longer the -iispcnH.:)., ,,f ihe f.-iuie- ac Decemher It), 1700. r-i;.. Nol'.TIIEV. (11.) 'J Ju opinio,, ofth-.saii,rh,,v,i.ro.:th< ,i„f,tnt^.^ <>: an <.■<■( of the JamairaA.^.Htnl>h/, „..■ i/,r .„s!^f, id with tii< i^iii i I, '.s> pni'o Mr. I'opple, I iiav.- .•.,„ id.., vd .,r;,u net pas.sed 'H tiic i.vjand ..f Jamaica, entitled an act to i.n.vide an OPINIONS OF EMINENT LAWYERS. additional subsistence ff,r Her Majesty's offlcers and soldierti, and for other uses ;" on which hiw I observe, that the parts of it which relate to quarterinfij and sub- sisting Her Majest\ 's forces are temporary, and are t c expire on the 1st of Noven^.ber 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 soldiei.< by de- ficiencies, I am not able to judge. Avhether it be a suffi- cient 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 per- son have any share of the money to he raised by that act, that marries any inhabitant of that island, i.s un- kind. And as to the other parts of the act which are perpet- ual, viz : the clause tliat disables any officer or soldier (the Governor exc.pted) to use, <'xcrci. that lays a penalty on all persons not being native born ■subjects of England, Ireland, o the plantations in America, that shall use, exercise, t.r enjoy any conuMissioii, civil or military, (except in Her Majesty's forces in that island under her pay): I am of opinion, they are l)oth against Her Maj- esty's prerogative, and the latter carries the disability further than what is done hy the act oftlie 7th William, which is restrained to thi' courts oflawandthe treasury, a. id thnt matter is not conct'rufd in the title ol' the net, and tlierefore tliat ttiis aet is not fit to lie eonliniied. K:nv. N(Uth. 170(1. OF THE COLONIAL CONSTITUTIONS. 861 Sixth. ; Of the various modifications of the con.'-''tut«d As- semblj'fi iiccustomed powers. (1.) The opinion of the Attorney-General Bnymond that an act of A-smnhly has the same effect imhe (Ma- ny as an act of parliament has in the mother country. To the Right Honorable the Lords Coumiissioners of Trade and Plantations. In obedience to your Lord.ship.s' commands, .signified to me by Mr. Popple's letter, i^earing date the 24th of July la,st, I have considered of an act which passed in Barbadoes the 1st of August 1712, entitled "an act to enable and empower the surviving acting executor of Johanna Parris, widow, deceased, to sell and dispo.se of certain lands, buildings, and negro-slaves, devi.sed by the last will and testament of the said Johanna Parri.'*, to, and for the use, and purposes therein mentioned ;" and though this act is not drawn as such acts are usually drawn in England, such acts here usually vesting the lands in the person who is to sell, and this act only giving the party a power .so to do ; and though the sale is to made by /rwro/vW, y<'t I take it, it will be suffi- cient in an act of assembly, which is of the same effect there as an act of parliauunt here ; therefore I have no objection in point of law against Jler Majesty's con- lirining the said act, if He.- Majesty sliall graciously be pleased so to do. l?oRT. Ravmond. August 1!), ]7i;j. 352 OPINIONS OF EMINENT LAWYERS. *" -' cm (2.) Thr (ipiii/oii of till' Attorney ami /tol-icifor-^reii- h Mnnwj (tnJ IJ >i;if, «». tlie vsital j)?%mle(/es of the Ja llurr I A-^-11'in'ili/. To tlu' iv;j,lit Hull, the Lords Commissioners lor Trade and I'l;uu:i(i(iiis. Mv L iros Piiisuiiut to your Lordships' desire, signified to us In- Mr. Pownall in his k'tter of the i5th inst., setting forth that \()Ui' [v)i(iships lia\;ng hitely received a hitler from Mr. Knovvk's. (Jovernor oi' the island of Jamtiica, in which he ac(iiiaints your Lordships with his having dissolved the a-scml)ly tiiere for calling in question His Maiesiy"s ri-iht of issuing writs for i lecting members to it in the a-^si-m aiM l)ly without waiting for a message first 1 iiK'loiiriLi' to us an extract of the said from th ' ii letter, together wiMi a copy of tiie re-olution of the as- ,seml)ly, upon wh'cli that dissolution wa« foimded, (which extr.c't and ci'py are herewith returned.) and desiring our opinion whctliei' the assem))ly were wai-ranted lu coming to that re-^olution, and whether it he con-istcnt with His .^h^jest\'s rights and prerogatixi' : Ave have cou-id 'I'c i iiicreof. and do not think our^i'lves sufti- cientlv infoi'med to give .•ni opinion upon the (piestion so frcnei'all\- slated. Itcc.in- it depends upon the consti- tution of ilic a-- KicH. Lloyd. (3.) 7 /tc opinion af the Attorney avd ^olieitor-Gene- >-(:f, YovW' and T(df>ot, on the >jenem( policy applicabh to thA saihc A-send>J>j. To the Right Honorable the Lords Commissioners for Trade and Plt.'itii^ions. M'.y it phrase your Lordships ; In ohedience to -our Lordships' commands signified by Mr. Popple, referring to us two acts of assembly passed in Jamaica in April 1728, entitled -'-an act for granting a revenue to His Majesiy, lii;; heirs and suc- cessors, for the support of the government of this island a.idfoi .eviving and perpetuating the acts and laws thereof;" "an act to oblige the several inhabitants of this island to provide themselves with a snfticient num- ber of white people, o/ pay certain sums of money in case they shall be deficient, and applying tlie same to several uses, fui- repairing the wall of Port l^'^■■11 :" for "lu- opini(.n thereupon in point of law, and transmit- ting the draught ofa bill for raisinga revemie in Januii- cn. which was formerly prepared here, to be passed into ii law in that isjaiid ; i;^ likewisea c(>])y of the instruc- tions given to Major-General Hunter for his direction in this uiatter: we have considered the said acts, together 46 354 OPINIONS OF EMINENT LAWYERS. i 3 »»4 with the said draught, and find sevral variances therein; but no question in point of law appears to arise upon any of those variances, except in the particulars follow- ing, viz ; Ist. B}- the draught it is provided, that where goods or merchandizes should be landed without the presence of the proper officer, or paying or securing the duties, the same should be forfeited, and should, and might be, seized by tlie receiver-general or any person authorized by him. By virtue of whicli clause, when passed into a law, if any goods should be landed contrary thereto, an infor- mation, by \vi\\ o( (fcrc-nrriuif, mighi; be maintained for the value thereof without an actual seizure of such goods. By the act sent over it is provided, that goods so land- ed, being seized by the receiver-general, or any person authorized by him, shall be forfeited ; in consequence of which alteration no forfeiture can arise without iin actu- al seizure of the goods, which is often impracticable in cases of clandestine importations ; and withv^ut a forfeit- ure, no (/cv':nerii/U can be brought for the value of the goods. 2d. In the draught a clause is inserted, obliging the receiver-general of the island to deliver his accounts within a limited time Lo the auditor general of the plan- tations, to be passed l)y him and transmitted to the lords of the treasury of Great Britain ; and the doing of this is made part of the condition of his bond, which, by the draught he i.-.- directed to give. In the act sent over lx)th these provisions are omitted and instead thereof a proviso is inserted that nothing in that act shall prevent the receiver-general's account OP THE COLONIAL CONSTITUTIONS. 355 with the !iiiditor-<;eneral of the plantations or such oth- er person in the kindom of Great Britain as His Mi-jes- ty, his heirs, or successors, shall think fit to appoint for tliat purpose. Upon which we beg leave to o})serve, that by the act thus altered no new obligation is laid upon the receiver- general toaccouut l)efore the auditor of th- plantations, but his being obliged, or not obliged, to render .-ich ac- count, will depend upon what was the duty of his office before this act passed ; of which we can form no judg- ment, the constitution or appointment of that officer not having been laid before us. 3d. By the draught it is enacted, that the act to be passed in pursuance of that draught, and all other acts of assembly, formerly enacted and made to be of equal continuance and to expire together with the revenue act therein menticmed, and not thereby altered or re- pealed, should be perpetual ; and als„, all such laws and statutes of England as by usage and practice had been accepted and received as laws in Jamaica, sli...il:- any great inconvenience ni ihis case, but rather a necessity, indeed, tor the passing tiiis law, because of the act which Mr. ^Vest mentions in his report, that obliges all owners of laud in thi>,;part of the island, to settle their jJan tilt ions within two years, under the forfeiture of their vcsoective hiterests to the King. But what I chielly ground my ojuuion upon, is the luemorial itself of Gordons which containing only gene- ral allegations and unsupported by any proof or evi- dence that I can taxe notice of will Ije in this caseagood Ibudation for conlirming this act. For the memorial says, J()S-> Sir Thomas Lynch sold this plantation to Pope and Harbin, which wa>; the sr.me vear. the act says. Smitli made the reconveyance of tlie-^e lands to Sir Tiiomas Lynch. It likewise says, that the greatest part of the purchase mcmey was paid by Pope and Harbin lo L.ady Cotton ; but I beg leave to ob.serve that it does not set luiiii how much, nor at what time this was done. The memorial likewi.se says, that Pop." conveyed a moi- <.'ty of his share to Peers, but doth not say when ; and that h." mortgaged the other part, but at what time, or whether it was to Sir Thomas Lynch or Lady Cotton, doth nowhere appear ; and yet tins mortgage is made the title to Lady Cotton, to enter and take the profits all thi:; tiiiio. It seom;i a little odd she .should have lx;en sulVered m 358 OPIMO.NS OF EMINENT I.AVVVEBS. to lUiiintixin tliis disseisin and usurpation on IlaiTMU and his heirs and the other inen»orialists, and nothinj^ be done in this lenj^th oftinu except a hill lately brought and that not prosecuted. So that upon coni[)ariug the act and ineniorial togeth- er, there doth not seem to be a sulHcieut title set up. or allegations proved, to prevent tlu- c( •iinnation of this hiw ; tor the a<'t extends to fore « lose only the repre- sentatives and a-*sigus of Smith, no other right is eon- eluded, and the niemorialisfs right is dei-ived wholiv from Sir Thomas Lynch, and is no ways dependent on that of Suiith ; and 1 take it to be a settled rule in the construction of acts of parliament, that where lnud is even giv(>n to the King, or where a comcyance by a statute is made go(Ki ag;'.inst a particular jxrsoii, all other men's rights are .sived, of course, without an\- provis,). The memorialists, after the pa.ssing this a( t, may lie at libertv to controvert Mr. King's title; but tln-re mm- be very great danger, at least great iiiconveuii'Uie, in not having this plantation settled, 1 think this 'aw, which is to further that end, may lie ver\ .-al'eh |ii--ii!: and that this ciise is out of the coiumnu n/asou ot (he legislatures' leaving the decisiDu- of pioperty to the le- gal course of justice. Mr. West, ii' his report upon this matter, i-^ ,> taken to be true. This rule ma\ generally be tru.', but 1 think in adve.-sai-y l.dN cl' Ibis naliu'e, uhidi are onlv the |);.rt\ s own slr.U of the ca.M', fiiis mlc houlil not lie extended bn-tiier than tin particular facts nirni loncd , Init I apprehend, if ought not to be pic^nmcd ibat eve- ry thing i,~ full\ slated ami that all l'a<'ts and cucnin- OF THE COLONIAL CONSTITUTIONS. 359 ! n stances are disclosed that are necessary to give a per- fect insight ii.^o the merits of the hill ; for though the facts alleged may he true, yet oth-er facts my he sunk which may alter the case and defeat the allegations of tliehill; neither do I think it safe to argue from the analogy and reason of penal laws in the plantatioins to altiil of this kind, hecause rules of state and policy arc no proper measure to adjust private property. But for the reasons I Iiiive before oflered, I can sec no incon- venience from passing tiiis act ; it is doing no more thanacourt ofe(piity woul npiuiini of the Atf<,-i)i>>io,iy tlii' ])al!itine or his doputv am', threo luoro nf the Lords Propi'it'tois aiid tlu'ir drpiitios. and then n;>t to continiii' Iniiier m; Ibrcc but till tlic next bionniel parliaiiiiMit, nnli'ss in the mean tiuio it lio rati- licd Mud'-r llio hands and seals of th" palatino hiniselt' and tln-cc nioiT of the lords proprietors tlieniselvcs. and hy their order pnhli-^hed at the next biennial parlia- ment :'' ami upon the whole cireuuistauees of the ease relatinii' to these aids, we ai-e of opinion, that !hey are not bindin:' rither on the (Irowiioi- jieople, I). 1{U>K!!. March, IT'iTS. ,1. Stka.m.e. nt III 1/ liii till lldlxiil IS A'^xi iiifil ij. ('onnni>>ioiiers ol' 'I'rade and IMaulatJori . My Lonb; 111 (I'ledieiiee to youi' l.ord-'hip":' e.)iiimaiid' , I have pei'U-^ed and coii-ideied an aid parsed in the island of Barbadoe^, iMititled ''.Vn aid for la\ inLi' an impi»ition or (bit\ '111 wine-oi- rtlier >tronL;' liipiors imported nito this island, in niilj'r to rai-e money to carry on tlie fortitica- tion-i. i or pa\ iiicnt of-uch pcrsoii'^ .is arc or >!i.dl lie eiii- ploved at th<' piil)lic (diar^e, and ti'i' >uch otln;' ]»uMic uses ;,> ,111' licrcMi cuntalucd In rrjalion In whicli I would I'l'ir lca\i' tol:i\ -,.|iic I'lwci \ ;itiMn- licti'ic \ mir liord^hipv I take it to be a i;ciicial inlc in the \N e^( Indies, that all ta\e-^or impositions u hatsoe\'er. to be n^ed I'roiii or laid upon the Milijects, ou^'ht to be eicicted in the par- ticular !»iil> ii\ wliicii th(>\ ar.- ci-eati-d, li\ wa\ of iriant P p "F THE COLONIAL I O.NSTITUTIOSS. Z61 IJi« .VI».iostv, l,i» l,,i,,,,„,| ,„.,<,„„^, ,,,,, ^ .0,0 ,s „„ ,„e„.i„„ „.|,a..,evo,. „„.,,.„„■ u,e frown ,"' 'e,ea,,,vg™,t„f,,,,,,h,,,,,„i,: ie i» only 'Jd ",.«!,oK„„,„,l,on ,,.„n,i„„,„„, ,„• ,1,. Ml, ^, \vitu the colloctK.ii or rcccinf nf il,,. . .> M(.Li[)toi tlio luonov. For fl,p f'";"":,r^^- ly .i,o„,..iv.. ,.ko „|,„n ii,,,„, i„ ," 'l""-"'-"'l"-i"poi,„i„s i,or»,n. to ollioia,,. in ,|,eir <."vor„o,.,n„„o„i„.,..,ffi.,. M,i» ,,„,,, oJi'nk „„,,,„ :'• ": """' r" ""> '' "•■..'■■■»l --o.,,!,!,- ,o „,oot ror ,""'"",""""""" '"■" '.o-.n-o,- :,n,l ,.,„n,,„,,IK.,— '":""■""■""" • I"-- li..,« i» .„,„iH,..,„ „i,„ 'l'-K..,r I.,o,o«,„ivoan,lin.,„„„,i„„., ,„ „,, ,;„,„,,. "";■ ' ' "" ".'.' '•"li.oly lo vo„r r,o,-,|,l,i|„ V.i„l,...,„l„|,.„i||,„.,|,„|,|,,,,^,„l,,, ^ "':■ ",";""■> '■'"•'" •■ .-i-i In ,1 ,, i. ,o ,,.: :;:"",'•'■; "--)a,.o,„,,av,; „j,,: ;::::,;:;;':' "^ ■■■'■i ". on."-..!, ,o ,o„r ■I"|,- r..la„„j; ,„ 11,0 M,l,jo.., n,„(ta- of tin, ,l,„o , ... ii- 362 OPINIONS OF EMINENT LAWYERS. the niiinnerofgrantin;-- it, I must beg leave to mention some other i)arti(nihirs to your Lordships rehiting to the luannerofeolleetingthis duty: it is provided ({' any misuser of it. 1 d uot see that, by this act, the par'.y agricved can have any relu-f by ap- plication to an\ court ofjii-tice within the island: I would also observe that in the issuing of tho.se war- runts tlirre is a di-viation from the counucii l.i • that 1 douotuell uudcrslaud The proper ollicer to whom writs or warrants of i-xccution ought to be directed is the marshal th.-rc, as the sheritV is hen- at home, l)ut these warrant- from the treasurer an- to l>e directed to nny two constaltle>, who aie e.vprewsly U) proceed in OK TirE COI,0.\IAT, CONSTITUTIOXS. 363 the same nxannor as marshals are to proroed at common law ; aii.l, therefore, I do not see any reason vhy the exeeution of these warrants should be taken out oV the liMuds of those officers whom the common law appoints for that purpose. I nu.s^ further ol,s(M-ve to your Lordships, tlp-t for thr Letter .lis.-overy of any , and '1'" oalh-., ojfi''^-, (nf the nature ufwhiih (hi. is) have '"■'■" ■^"'•''''" an.l ^..uiuel, lemiud, that I think I " ' ""' ■^•'^ ^'u.^ ibiu- lurtb.r .•uncernin- it. Anotiier ob>e,vafioM ubiel, I ^i,;,ll la v" b..fore vour l^"id>hipsi> the penalty ui,i.l, is ena.ied upon the re- _'u"vin- -ir landing any li.pior^ eoutrarv in tlH> aet.— ''■'"■ l"'"^'>'.V'^"ut restrained to any .trnn:,l„p,ors that Nl.oul:|l,en'n,oved or landed l,v tl,eeunM'l, bi.t it is w .nie.l •„ s.. l,u..-e a manner, as e. «. n-. wines or -^tron- lli-a»i(;n of them, your Lord- ships will determine whether ii will be proper to be passed into a law or not. KicH. West. January 21, 1723-1. (7.) ^fr. Wisffi oJijecti'inff to rar/'t;/^ (vt^ of flw Bar- ludoes ^isn< nt!/h/. -s/i uriinj fl.iir inip'f/i<'.\\. To the Right IIonora))le tlie Lords Conuuissioncr,s of Trade and Plantjitions. Miiy it please your iii)rd>liip;-; Jn obedience tp yoiu' Lonl-b'ps' commands, signified unto me In .Mr. ScirclMry ''opple. \ have perused the sevend f'lllowiug ,u'ts pjissed in 'he island of Harb;uli»es in the yiMi- 1717 an!i of Christ rhnrcli to --fll -i\ acre- and thirtv i)ci-ches ot land in tlu' ^aid parish, rmincily (li i.iu'! nf I'hilip Howidl, tlcceased" OF THE COLONIAL COXSTITUTJOXs. 365 (no objection); " a supplemental act to the aet laving an imposition or duty on all sugars, molas.es. rum 'cot- ton and ginger, imported into this islan(^ which are not the natural product and manufacture oi' some of Ills Majesty's colonie.s"(no ..bjection) ; - a.n act to prohibit masters of .ships and other vessels from landin- aliens or IbrcMgners in this island without a license for so .loing from the Governor or Commander-in-chief for the time bomg" (no objection) ; '^ui act for providiu"- a recom- pence for Thomas Whaley, attorncx at law. clerk to the couun.ssi,mer.s of contracts, i\n- repairing' the lortifica- tions, lor his drawing several articles, an.l other writin^r for the country service, and also for satisfaction of some charges, &c. • (no objection) ; -an avy on the several inhabitants of this island" {no nhjiv-tj,,!,) ; .,,,, .,,.( j-.^j, til- l)efter onh'ringand n-uh.tlni.- Hi> Majesty's high !uid honorable court of e.vciinpur, and picas of the i ■,',p. ».'li "It » • 1 c ( If .^ : 366 OPIMONS OK EMINENT I.AWVKR?. crown" (no objection) ; "an act, for the better ordering and regulating His Majesty's courts of coiuuion pleas within this island" (no oljjection); "an act, appointing in what manner salt and all sorts ofgi-ain, imported in- to this island, sh:il! l)e sold or disposed of" (no objec- tion) ; " an act to raise a levy on the several inhabitants of this island" (no objection); "an act, for encourage- ment of Thomas Sainthill, gentleman, in his projection of a mill for grinding sugar-canes"' (no o])jection) ; "an act, for the iurhter and bettor enabling the committee, appointed for settling the public accounts of this island, to proceed t(; the balancing accounts (4' the honorable Thomas Maycock Es(j., late treasui-er of the said island" (no objection) ; " an act to empower the treasurer of this island to defray the expense of the late grand ses- sions, hehl for the body of this island, on the 10th, 11th and 12th days of June, 1718" (no objection); " an act granting a free liberty to the inhabitants of this island, in general, to load and unload, to and from any the bays, creeks, or harbors, in and about this island" (no objection) ; 'an act to confirm an assessment of negroes' hibor and carriage of carts, laid on the owner- of said negroes and carts, within the parisii of Chiisi-Church, by the gentlemen of the vestry of the said parish" (no objection); "an act, apj)ointing agents to transact and negociate the allliiis of this i.slaud in (JrcMt Britain, " I have no objection to theii- l)eiug passed into law. 15ut. as to tbi' act, entitled "an act, n'(piiring all per- sons to bring into the treasuier's nllice, a list ofall or- ders (hie to tlieui from llie public," I uuist beg leaye to observe to your Lordshi|)s, that, as only tiftcen days arc allowed to bring into the trutsurer's office all orders which any man may have due to him from the public, OF THE COLOMAL CONSTITUTION'S. 367 upon pain of being postponed in the payment of hia debt, that :t may be very injurious to persona dwelling out of the island ; and; theieibre, I submit it to your Lordships, whether it would not have been reasonable to have allowed unto such persons a longer time for the producing of their orders. Besides tlie above menti(jned acts, [among which your Lordsliips will observe, that there are several pri- vate acts] there are four other private acts, all them in- tended to dock the entails of particular estates, of which I cannot report any one to be proper to be passed into law : the first of which is an act, entitled "an act to docic the entail of a plantation in the parish of St. James's, and the negro slaves therunto belonging, and to vest the fee simple thereof in William Thorpe, gentle- man, youngest son of Robert Thorpe, deceased."' On which act, I must observe to your Lordships, that though there is a reservation of the right of Thomas Thorpe, who, in case he should return into the inland of Rarbadoes, would l)e entitled unto the estate in fee, yet it is upon this condition, tluit he should live in the is- land now, though this is in pursuance of the testator's will, yet, while it stood upon the foot of the will, Thom- as Thorpe might, and porhaps with success, have dispu- ted the valiility of that condition, but, if it be annexed unto his estate by the parsing of this act into law, he is then bound down to the jterformaiu'e of that codition without remedy, and his removal out of the i.^^land, to reside even in Kugland, might be construed to be a for- feiture of his estate ; I submit it to your Lordships to determine, how far conditions of this nature are to be encouraged or not. The second is r-i act. entitled "an act to dock the en- 3(58 OPINIONS OK EMINENT LAWYERS. '1 tail on certain plantiitioiis, in the parishes of 8t. Thomas andSt. Jamos. andtove^t the same in Joseph Gibbs Esq. Upon \viiic:h act, I nuist • jservo to your Lordship.'-, that the t„ pay at tin- time prescribed, he shall fMrfeit donldc. A pic^tion seems to arise upon this claus(>, wheth r, altlii)ut;h the re[)re- sentutives should not ictuiii a li-t 'i'aidters, accord- ing to the dirtH'tions of tlu' ; iirhth clause, whether the treasurer may issue executions ujion llu> dcfaidters, or in what other method he ina\- proceed I The act of asstunbly is not socdcirly penned upon this point as it ought to l)e. but, up'>u considering the seve- ral clauses. I think if the person^; (diargeable neglect to give ill th"ir number of negroes, or neglect to ])ay, having given in as is dii-i-cted, notw iiiistanding the rep- resentatives should not return a list of I he defaulters, ac- cording to the eiuhtli clau-e. tlii'\- v ill orlei t doubk and the treasurer m;n- '\ y tile lorfe!*iirc accordinu' to the directions of the twelfth dausi snd ju Older 1( proceed thei-eto, he is to recei\-e any legal e\idenci' that .shall be given, l)ut I'.c- cannot exiimiiu' the party him- self because it may tend to subject liim to a ))enaltv : this method of proceeding m,iy pei'hap- 1k' the ri' ■ t ex- peditious, ' ! > ti;,! y,^o^f certain will li^'. by tiling an En- glish bill I ■ i per cwu t ill (lie attorney -general's name, on li■.^ .tiajestN ■.- behalf, for the reco\ ery of the single duty, waiving tbe pcn;dt\ . By the fourth and sixth clauses ,n the act, 1. lid patent otticer^' are charged will w\'ers > a sum ceri.i! i, ro- om it tei I to be spectively, but the iion-paymeut of it made a tbrfeiture. A cpiestion may. therefore, arise, OF THK fOI.OMAL CONSTTTTTTIOKS. 371 wlietlur the trca.-siircv may issue fxecutioiis Ibr the sm- •Av '\\\\\ ' 1 tliiiik tliLTf is 111) authniit V' <^iven fo'' tl'C treasurer tn jjiweed in the suiuui.iry way he is empow- ered U) do u[»..u ;: j)eiiaity. and, therefore, the proper way oT pioi-eedinj:; in tiiis cast., -ill l)e by Kuglish bill, in the attorney-gener.d's name, on His Majesty's l)e- liidt: Tbe coiiiniittc- fur setliiiiLi: ilie ])iiblie accounts, and wbo, in tlie fourteentli clause ofthis act, are vesl.'d with pv)wer to proceed a;:ainst tlie trea>urcr for any ne-lect, the same manner as iic (.u<^ht to have done a^ain-t the owners theuise!\-es, are by a !'( i inei- law made 'm of four menilx'rs of the council and six of the assemb, Now it hapi)ens that all tiic-e last are defaulters ihemuelves, and ha\i' inciu'red ; 'Uiiities fo- not pursuing the act, and. ttiercfoi'c. it is a])pndu'n(led they will (dther avoid making a connuittee to settU' tlie treasurer's accounts, iu order to screen him or themselves (who, it is said, have given him security to indemnity him,) or else ff they do meet, they will adjust his accounts without pi-tjceeding against him for lii-neglecl, by which means there v.ill be, as there lias been alreadv for two years past, a great dfiiciency in the collection, and conse- <|ueiitly. great arrears due to His Majesty. A question may ;iii,>(> up.-n this : If i( ap]>eai's that the treasurer has neglec'ed hi. - duty, whci'eby a deficiency in the collec- tion has f)ceii occa-ioiied. ^\llat method will be proper to be talvcn against the trea-urer. \'r.\- what is due to the (ioveiaior, although the committee of pultlic accounts should do a^ ;ib>vo-iiH ntioned .' I think by the four- teeiith chr.Hc. the parly charged wi'li the dutv, wlio was til" original dciitt)r. i< expi'essiy di^'hargeil, and the trea-urer. by rca-on of his neglect, is put iu his place. '4 372 OPINIONS OF EMIN'F.NT I.AWVERS. and, thorpforo. in cases whore the treasurer ini^ht clenr- \y by hiw have levied the penalties, and li;is wilt'ully neglected to do it, he will lie liable to ;ins\ver the sin- gle duty, and a bill may be brought against hiui, in the attorney -general's nanu', for the re('()\'ery thereof. The treasurer, who is clujsen annually, is obliged by the annual excise act, to enti'r into a recognizance to His Majesty's (Jovernor, with such good and sufHcient securities as the said Governor and council shr.ll a])])rove of, in the sum of .C1<),0(M) f the faithful discharge of the said otlice, A ([uestion nia\ ari-c n|>on this, if the treasurer has in any instance iici;icctrn-ii|cratioii. whcfiicr the recognizance for the faithful discharge of ids ollice can be put in suit by a \ciir f,ti ia.s^ unless such negii-ct shoidd appear l)y the procedings of the connnittec. and Ml Avhat mann.cr ; if judgiuent should be obtained upon this recognizance, will the money Icviecl thereon bt< ap- plied \ I think it is not -u'cc-sary that thi' accounts should be (irst adjusted b\ tiie conunittee, or that thcv should determine till' negieit before the treasuicrs re- cogniziince is put in suit. I think the wilful negle<'t of the duty reipiired of him by the act will be sucli a l)reach o'the condition as max be assigned n|Min a v./zv tnctd-^. beciUi.-'e, I ob>ei\e, the reco'^nl/.a nee was entered into after the passing of the ait. \vliercb\ llie se\ei-al matters mentioned in tlir ari iU'c made jiart of lii< duty. I have now statu! to \our F.oidship- the sevend (pie.stions that 1 apprehend ma\ ari,-e upon ihe c.inHrl- eratioii of this net. a< lo ihe method ot' recovering the several ihities granted, and have uiven yoiU' l,ord/ As.',, nil'hj < utifin,/ jxip,)' ni'iih )/. May it please your Excellency : 1 ])rosiniie, with your Kxcellency's piMiiiissidn, and niid. :-vonr pardon, since I am (li>al)le(i Iron i wait in"- on yon, to ;^ive your lOxcelleucy my thoughts on the act rrlatin;.' to the payment of the liank hills, the occa- sion of which was on the act ti»r estaMishin^' a method of credii, &c. which said act oi' credit Her Majesl\ hath heen -ra-iously plea.^ed to repeal, findini; it iiL'ainst her prerogative, and for the disadvantage of hor sul.jects and trade. This act heinj^ repealed, I take thi' wholf ju't to he a.s if no such act had heen made, .is to inn xWwv^ in t'orce now. ;iiid, hy the repeal, the wlioU' is ^omv nn' instructions nppuinted wiiat was her will and pleasiiii- to he done in this ease, and llieiclore ;LI);)ollili_'ii (hji.t l>\ >iii!!!i. !!.:\v l:i\V- thny.e Oi",!!!!:' •.•.he. w : ; '■ 1 •< h" hH » ' 371 orixiDX < or r.Mi '>-'!! T i' I,AV,VFJ;P. m wore ohliii'od t(i)»;ii( with tlicir IclimI sv.'-,'!ir'*it's, l)o no suilVTcrs tlK'i\'l)y. imt !j>' ic t oii'diis tin' a -■ irav lie to the Siuiie state tlicy were in !> 'iorc llic ]t.i--\\ tln' eonlrary. ihcy had ;• ;ee(Mh'd ihi' -^aid in-lrncliou- iuid piiwei'. and en,-,"i< d n luy -traniio and ill. -al thin^'v hi.th d ! tVtacnl Imin. and repc'cnaut ti. ihe aid iu-liiif- tioas.l'or I cannot lind iliathy any pari nf I lei .Majesty's iir-trnct inu- thc^o law-Jiiakors were an\ ua\s Mujiower- ed to any d llie sovenil tliiiitrs rojlowin^, all which arc enacted l»y tho said net. 'Idial Ihcy had aii\ power to nltei- I ho nature ot'nny "Ichtand to nfivr honds tiie forco of jtul<;ineiits, without any le< al jinteeedi i;;- thereto. That a«t eannot «le» hue the fti'ul hundH to In* judj;- ment''. and .so to npjxiint that e\eeiiti«in shall isMie, itiid Im" levied 011 any estate, real or persiinal, of the delttor, <'l" THE COLONIAL CU\>>T1TUT!(>.\ 875 and ill defiuilt tl gal and coiitram- to ji it'ieot. on liis person, without boiji"- ille- iw, For '.t tht' .liToat statute of Mauna Chart I, which is so (kv i.u-hsh snhjects, and luith heon two thirty timeHeoi, finned, positively declares that ana diall he d no man isseiz aw. •■•I <:i 111- iVeehold but \)y duo process of And how this act. statutes ol'tlie kin-doni ol Kuiiland. scizii.u- an\ pers,,., ,,(' his iVeeliold without trial, whether ;1 ''"Mirary to this and uiaii\- (.ther an enable the dis- uiu'ther, if due, it is satisi le delit is d a Dare warrant, uc or not, or am contrary to c(jniiiiou liidd led nv not.sc'euis verv ,strany;e md rv'asoM as well a.s li 1 '■o\-ernor hu'tlier, I take it, that the ijier, ( *■""•'' not eiupouer the passin;- any such act, 1 till' words of the said Ih' passed thai ai'e \\ 'ait all SUCH h w< as sliail iw; coniniission that iinissiow are that no laws .^lall IHiunant to the laws of Kni' pas>eon. or is re- |"i-ii,iiil Ml ilnpossihi^. in It- ell. I - VoMl Th :il all limited autijoritir-; mi^l I, ■ -tricfl 'iherwiM', wiiatovor i.s done iiiidcrtl \ pursued, ic picteiii'e of *neh aiillioritv, i.s not wair,-iiii;ii lie I lierel)\ . ai III lia\ .ny- no lollllllallnli | t W \\\ I I 1* il: ffl 876 OUNIONS OF EMINENT LAWYERS. authority givt'ii to the gentlemen therein mentioned, by tlie verv act Usell' is but as conunisBioners, without iu- vei^ting tlieiii, in tlie leatit, with the qualification of a court of justice, and a commi.Sfsion granted against law or the empowering particular persons to do things a- gainst law, is void, and so it would be, if they had en- acted it themselves, and the express words of the law are, that no conuuissions may be given or granted, to do any thing against th- law of Gud or the nation, as to take or impiisou n.en's bodies, enter upon their lands, or take their g(«ods, without due order of law. and, if anv sui''' be gnmted, the law declares such commissions void. It is to be allowed, t]t".t the legislative authority of this island hath sullicient power to do nian\ ami nol)k' things, fnr tlie wi'll being thereof and for the t'ase and satetv ol' the people, and the more they keep themselves within th,' limits of the (lovernor's c(unmissiou and Her Majesty's instructions, the firmer will their acts be, and of uuich greater foi-ce, when suppoited i)y law and regal powiT. But, on tiie other iiand, it cannot l>e granted them. that the\ are capalile to enact at their own will and pleasuie w'.iat tbcy tbink fit. For they cannot, by a li'.w. idler ibc I'oininou law of Knglaud, au'.i and tlie sct- tb.'d conrsr of pioci'cdings thereon ; they cannot ciiangc the connnon siMiu'.iii - of the kingdom. 'L'bcy caninit enact an\ Ibing agaiiot Her .Majesty's nreioi^ativc. Thev (Miiuoi takr awa_\, ly any act the\ can establish, iin\ authoiil\ \f-ted in the (iovi'rnoi- liy Her Majesty'."* counnission, wiili in:in\ other tiiiii^';-', too man\ hi-r.' ti be c;.nnii'rated tbe\ cannot piclend to ba\c an cijiial powci w II ii >ii<' parliamer.t ot Knglaud. OF THE COLONIAL CONSTITUTIONS. 377 So I ohsorvo, that many brrcnohos of this act are, that in case tlie debtor fail to perform many requisites ap- pointed by the said act, thou^rh without "arv legal trial, or hearing, or jud-ment, whether he hath really offend- ed against the commands (.f the said act, shall, "ip^n fac- to, be c.nnnitted to the conmion gaol and there t<) re- main without bail o- mainpri.ce, he and his cause being unheard and debarr.>d of any benefit of law or e(iuity and when and haw to be deliyered, though ney.T so much justice on the i,risoner's side, is not appointed or pernutted, and, if this can be calkd justice, it is ,>nn- »ujmj,i., which is, .v,//,,,„,, inqniria a misera c-st am, \i(it jn^i est I'll /mil. Indefinite imprisonnunit is against the law of the land, and! take it to be expressly iigaiust Her Majes- ty's instructions^ for any p,>rsous to be committed with- mit b-nl or mainprize for any <-rime under felony or treason, for Her Ma jet law ana the (^le.Mi's iiisfnictions, and theref .re bc.-om.' void. There is a settled maxim in tho law tli-t -o pc-s.Mi sliaill»e obbged t'. a(vu^aiv obliged to .wear uli.tji, i- tiny haw had lar- gn-.'ir.lit than uarr..;ited by (hrl.ile repeale.i law, and th. ivby bring tlien.Mhv-. within tlic penalty thereof " "'' ''"• P"'^-^ '•■ 'ii'.> ont Km-,w the real title ,.r vaba> ol'his estate, \ et tl without an\ leiral trial. I lit le e(.iinniv-.i.,ner'- b;nc alr-nlnte p^wer \ > ' tl o coiniii i t uiii'ti i. o''"»> «■'-• il ■t*m - ''' I % [1 378 OPINIONS OF EMINENT LAWYERS. The statute of Magna Charta is express, that no person shall be restrained of his liberty, or disseised of his lands or tenements, but hy due trial according to tho law of the land, the bouefit of which statute is wliolly taken away b\ this itct, aud the subject debarred of his liberty withiMit trial or an}- other due course of law. Also, in most of the branches of the said act, it is en- acted that if compliance in payments iS:c. is not exactly as the act directs, then t.ie commissioners are empow- ered to issue out executions and thereby levy not only on the debtor's real estate, but also on hi- personal es- tate he shall then . i' possessed of, and this without legal trial, whetlu'r the said estate is liable to such execu- tion, or whether the party hath right or title to the same or :iot, for many persons may bo possessed by several lawlul ways, as by late managemert, executor- ships, as attorneys. lVc. who have no legal right to such personal estate, b\ which mcauv by the borrowers act, the right owner may lie stripped of his estate without trial, and, liy the said act, is afterwards debarred of any remedy either in law or e(piity, foi-, In the words of the act, a bare posse.-^sion eiuitlcs to an execution; and, if iheoflicer find not siillicient to satisiy what is re(piired, tlien ibe person may be comMiittcd to gaof without be- ing tried whether lie hatli olVeiu'ed against the said act or not, or l>eing adinittf d to the liherty ol' lelief' in eipii- ty, writ of error, or appeal to the (ioverntir or llei- Maj- esty herself, which (with submission) I cannot conceive to be consonant tn Her Maje.st\'s order or hei- 'n-acious introccss of ^aw, or appeal, what- soever. The authority given to the said conunissioners, being to them, or to either of them, I conceive to be uncertain and inconsistent, f.)r, tiiat each person having the same fullness of power, two executions may issue at one and the same time, for the same cause, which is against jus- tice ; but Icannot conceive that the povver of issuing out executions can be lodged in two person.s at one and the same time, and I presume no such precedent can be pro- duced, for it was nevi-r known that the power of issuing out execution was ])laced in any other hands than the chief judge of a court. The great and orinciplc clause in the se. nd folio of this act, which makesall the estates liable to answer the Im)ugr.>at -vneral .laii-e mi folio :;. if i> . nacted, that till' ((Mni'si^v!!;!!:'!^ ::;■ :!*!!:i;- i J.' i\.,.::: I 380 OPINIONS OF EMINENT I(n,s' hoiusla ; third, hy jn'oldhem contraria. ; and if it must be jn^ta, it nuist have five properties : first, it must bo posstihilifi .; secondly, nece-smria ; thirdly, conrenie,i.s ; fourthly, nmnife-Ha ; fifthly, nv^loprivalo coiiiodo, -y,' cminiii utllitati -dita, and this grounded i upon holy writ, legiim eondite rcsjmtadecemant, vcc qui coiidiutt k(je-'i iniqm^ et m-ihente-'i in jiLstitiam -cripm-- a/d ; and how many of these requisites . 'ire contained in the present act in dispute, I leave to any considerate judge to deteimine, and I take i'., that this act falls un- der the said rules of being impossible and inconvenient, for the enacting persons to be disseised of their estates and their bodies to be imprisoned contrary to common law of t!ie land is legally inipossi])le to be done, and it cannot be denied but that it is very inconvenient .gainst common justice to be stripped of our freedom, rights and properties, without any judicial hearing; and what is the highest injustice and the greatest of hard- ships, that how UDJust, irregular and severe, any pro- ceedings are, or may lie, the party grieved is debarred of any remedy, either by writ of error, injunctioing dead or reniovcJ,) to execute the powers in the original ;" and this additional art is part executed, or not exeeut-d, and provides sev- eral remedies, where monies bid on sales at outcries, pursuant to the first act, have not been paid ; and lay? several penalties on such bidders not paying what they shall have l)id ; and empowers a person to bid in behalf of the government, where no person apj)ears to bid, by which I apprehend is meant a real bidder ; for in the oath of the persons empowered to bid, he swears he will not bid, but where no other person will bid, or un- less a person shall endeavor to purchase the laws at an under rate, and swears he will not exceed in such bid- ding, two-thirds or what he shall, in his conscience, es- teem the land wor+h ; which seems to be a penalty on the owner for keeping away lu'dders, otherwise I do not see why the bidder should not give the value of the es- tate. And the said additional act gives several powers for the better executing the design of the former act, which wa,, to discharge the debts and engagements contracted by reason of an act, entitled an act to supply the want of cash by a method of credit, for persons having real estate in this island, ( called the paper act) which was repealed l)y her late Majesty : and r have nu ob- jection, in p(.:iit of law, against the said a«lditional act. There is therein a pretty extraordniary punishment on persons bidding for lauds which they were then incapa- ble of paying for, viz : imprisonment for a year, to be set in the pillory, and to have their ears cut off; but that being oidy for persons \Aw knew their own inal)ili- tios, I hiive no ol)jection thereto. Fjinw NoRTHF. , Deceml>er 28 1717, m r . f -If • 11 [f ! U : it 384 OPINIONS OK E.MINFNT LAVVYEKS. (11.) Thi ohjrctiiin of the sdiiic J(iiv>i( r to tui of Hav- huloex^ r.'.v uHixasiiualile. To the Kif^lit Hon., the Louis Coiiunis.sioiU'rs for Tr.do and Pliintatioiis. Aray it plca.sc your Lord^lilp.'' ; In (.'beclieiicc to your lionlships' or(I<'i- of refcri-nri', si^Miitiod to 1110 hy Mr. Popplf, 1 liiivc considrn'd tlic follow! uic acts passed at an asscmhly of Har'tadocs, in Mandi 17(H-'J and April iT<»2, viz: "an act for the fur- ther supply 111" fire-arms and other store's, ^:c., dated tli" I'Jth of March. IJOl-li ;' " an act to secinv the ])eacea- hle jiosscssiou of ne<;roes and other slaves to the inhalii- tjiT ts of this island, an(i to prevent and punish the clan- destine and illei^ral detinue of them, dated iiie L'Tth of April, 1702 ;" ^vhichla^v^I coiu'cive, are ajireealile to i.iw, and do not contain any thini; orejudicial to Her Majesty's prero'^^alive, I'xcept the act to secui-(> the peaoeahle i)ossessien of neirrot's, v*s:c,, as to wiiitdi I ;na of opinion, that th(ninh many part-^ of ties law (which is not temporary hut perj>etual) may he of use to the plan- ters in Uarhadoes ; yet that part of it whirohihits the carry i:'.;r ., way white st . .ants without consent of the (nvners, undei- till ^lenalty of dui' huuured [joumls, and ohlijics mastt'rs of shii)s to sweai- not to carr\ tlieiu away, is not tit to hi' a|>[M()\c.' of: for that (diildren sto- len from Knulandaud caii'it'd to the Harhadoes cammt he re(daimed and carried away at tiie instance of their p!iri,v;ts ; and as it is worded (if otlicrwise fit) it i- uu- n 'sci.ahle. heinir. if any pi-rson sliall di ecth' or indi- rectly carry off, atteuuil, or cau^i" to he carried oil" anv rt'hite servant without knowled of the own(>r, which a man may innocently do, the words (knowing siicli \ •^ OF THE COLONIAL CONSTITUTIONS. 385 person to 'jc a sorviint) being omitted ; and therefore I think this huv, with tlicse clauses iu it, not lit to be approved. Edw. Northey. Oct. 22, 1703. (12.) The irport of Mr. We-^f, in famr of a Jamaica art upon i/cticral principles nf colonial policy. To the Rij^ht ITonorable the Lords Commissioners of Trade and Plantations. Mv Lord.s ; In obedience to your Lordships' commands, signified to me by Mr. Popple, on the 27th of June 1723, I have reconsidered an act passed in the island of Jamaica, en- titled an act for encouraging the s[)('cil_v settling of the l)lautation, commoi.ly caiK ' Peio or Pera plantation, situate at Port Morant. in i he parish of St. Thomas in the East, in this island ; and for obliging all persons en- titled to tlie equity of redemption thereof I,; i.>deem the same by a prelixetl time. 5n the consideration of acts passed in the Amfn-ican colonies, when the Governor, council and as.s, uibly of any province take it I'pon them, in the preamble of an act, to recite and aver a matter of fact transacted with- in their own bounds, and to which no objection or op- position ! Made, I apprehend that 1 ought to t:'k:> tlio,se facts for ted, and upon that foot only to consider whether an act, referred to me. is reasonable to be pas,s- ed into law or nut. And if this act lie considered in that light, it .seems to me to be mucb -stronger than the common foreclosure of an equity of i.Jon.ptii>n upon a mortgage; for the act otr I III 1 I 386 0P1.M().\S OK E.MIM!-,.\r LAWVERS. I I :% recites, that it a|)pears upon record in the ishmd that the e.>tatL> in que.-^tion did originally belong to one Sir Thomas Lvnch, and that 1682, agreed for the sale oi' tl Smith, ff the year lis estate to one Joshua so long ago a^ 'or tlie sum of .COOilO : it also appears up on rec- ord thai Smith nev stead thereof u[>on tlio 2'M of X veved back to Sir Tl ever paid the purchase moiu'V but ui- ovcmbor. I(IS2, recon- lomas Lvncli hi-; own estate, as a security for the said sum of .CGOOO, with interest. V on th lis .'>niith was let int > possession of the estate. receive( and 1 the enjoyed the same until the year l(]93, and profits of it to a greater sum than the purchase nionc amounted lo. hi tlie yr-.u- Icii}. |>v ,„) invasi.m ..f tlu Freiudi. this estate was w hit both y ruined and made dc.«o e ; so that fi..m that time to thi-. it has been wholly unocciipie The act also takes notice, (hat this mortgage, that was made in the \eai- liisi', an'' therefore if it a vears to hv iinsatislied. is considered that the legal e-tat e Wiis originally in Sir Tl loma" I \ ncli. Ii.it a II tl le claim of Mint li is founded upon a d.e.l i>f pundia e, for wldcli lie ne\er paid any part "f )|,e eonsideiaiion mouev. tli.il the estate is m.w desolate, and if t.. this is added the consideration of what a \ast sum.CHHiHI priiK'ipal nioiiev with interest Irom tlie ar l(i.s2 to tl lis (ia\ iiiiist i'liioimt uiilo III a coiMitiy where cumiiiou interest has been always. I l>elieve, at least after the rate of eiiihtor t 11 per cent pei annum, I think it v.-ry obvious that this net *Jiiidi is only to gi\e ji fimiiU tl both in law .oid cipiiix much stronger llimi tl tv of redemiit U'lr own estate aillK;! I) lon-iilered but as le coiiimoii I .reclo-ure oi an eipii- ptioi) ^ Mild yet, even ill that . ise. if a iimrt- gugu iH very old, as e. g. above twenty or thirty Ncars OF THE COLOMAI- '.ONSTITUTIOXS. 887 fi-nm the execution, and no interest lias been paid upon it. I apjirohond tliat the court <'f chancery would not admit a niortujajror to redeem atrainst a mort^-ao-cc in possession, hut would look u])on the e(|nity (,f redemp- tion as extinguished by the antiquit\ of the debt : in the present case the demand is of w'nDvv forty ycirs stand- ing, and the efjuity of redemption, (if any) is founded upon so unerpiitable a foot, that I am of opini(m, it is jii annex- ed a Courant to my report wherein thi- ad\ crtisement wa> made lint, tlii- is not the only con-^jdriation that induced me to be of opinion thai (iiere wa-; no objection to this :\r\ beiii- p;iss<'d int;i law It i< allowed in ill the .\ iiu ricau colon 'cs ii< ;i uiaxim of la w, that i title to Ih" po'^M— ;ion of land- iiiiHt neres>;iiil\ lie •supported by an actual cultnie and plant iiii:,- (>f it; and that con- scipiently the iieLdect of the one will extiimni-li the otliei- liiis lli'iiiili IS founded in 'be nilure oj" ihiu^.S' ■''iii'c if I ol)\ ion- that no eo|on\ can e\er 1m> supported upon any other foot ; and, in <(.nM (luence vl' llii-. 1 bo- : ■ f .,f ll: i ' i if I l 388 OPINIONS OF EMINENT LAWYERS. 41 I* ^-- 1' * r * '1 lievo it has l)oen the practice in every one of the prov- inces in the West Indies, when the patentees ul' haiids have i'v.v a considerable time uei;lected plantinir of th( ir Kinds, which is a condition in hiw » ither e\p,'essed or implied annexed to their title, that tlic assemhly of such provinces have passed acts for tlie resumption of those grants, in order to enable tlic Ciown to uraiit those lands (fe novo to otiier ))ersons, who would in time com- ply with flic condition above nu-ntioned to be annexed to their estates. And as to this islauil of Jamaica. I find, that in an act pas.'^ed in the year I(i0(i aad confirmed anro lb"J9, and entitled • an act for tiie more speedy collectinj^ His Majesty piit rents, lim-s. forfeitures and anuMcia- nu-nts," mere is r clause, by wluch it is enacted that every i>ei->o]i not inhabitintr within tlie islands, and who was possessed of hind wliereon no settlement hail been made, >!ioiild Ibileit the suuie u,ih-ss tiiey accounted for tlie arrears ol ipiit reut-^ and made some settlement ii|)- on their land> -.vithiii two \eais after passinfjf the act : 1 mention this only, to show tintt it was the notion of the people of this island that patentees wt re ol.li eiit tome I'-, \our l,ord>liij)s to^'etbci wiih the ael now 'indi r consideration, it is (///A/- ////;/) eiiaclcd ihal.i \v\ s lai^e tract of land, '-m* which tlie (piit rents iVopi the year i'.tU had no been paid, siioiiid be absolutel\ \e-ted in His Majestv and it is also eiiaeled that every person claiming- any part of the Miiil iamh, allbiMiL-h the (piit rent^ ha.d been paid if lie ilid not settle the ^.\\\u- \Nitliiii two xear* af- ter piuwing the act, hi^ land .should l)e ab.soiutelv vested OF THE COLOMAL CONSTITUTION! 389 in liis Majesty ; but for tlie hctt this piirticiilar, 1 beg leave to reH the la-t clause of the last mentioned act er understandin;>^ of r vour Lordships to d. the pivaiable of this act is very full as to what 1 in.'utioned, of a settlement being necessarv to s title to an estate: to applv this ol ind.nK.reover, )efore ecure a l)servati(in to the act er consideration, your Lordships will be plea'>ed to , bserve that the reniarkal)le period of time v/hich now uii( 1 they l)utii refer to is the Frenel in the year 1(JI)4 ; and it is recited in tl 1 invasion of the island tiie present act, that, from that time to tl le preamble to passing of the act. the lands liave been wholly ,|e rte.l ; and that durin- all that time no quit rents Ikmc Iteen paid for the sni>e, and this is the onlv i easoii assigned for the lorleitme of lands in the other act, I would also ..'.serve to your Li^rdships, th.t the es- tate ill (piestiou :-< part of tho-e desert lands in tl ish ol •A\\\ t Th le par louias. 111 the e .>t part of tlu- island \\ bicli. cniise(|uently, by virtue of (lie act I last tinned to your Lordships, are to lie foi I'eited unless tl ant i men- wo years alter le (of which 1 am i;ot a judge.) I have no objection against the design of the said acts, but I am of <»pinion that one of the remcdjeM appointed by ihc s.iid act-< ioi punisliing the oflenders against the s;\id aet^. i-; unr(>asonable and ;iiiju»:t. espe- cially as to the st'i n-tary. provost-marshal, and the reg- ister in ;;!>ancery of tiiat island, who held their offices OK THE COLONIAL CONSTITUTIONS. 391 by virtue of letter, patent of IIi« Majesty or his p.-ede- cessor ; for hy the act No. 41, it ,s provided that no of- ficer wliatsoover belonsinn: to that i«hi..,d, &c. hy him- self, deputy, clerk, or servant, .hall, after publication thereot, receive or take any other fee or fees for ony busme.ss nanied therein, than is for the same in that act expressed, under penalty of foHlitinj, or losing his or then- office or offices, and lying i„ the common gaol w.thout ,.a,l or mainprise the space of ,,„e month, the .ame to he nn.nediately executed upon him or them, up- on his or then- .-onviction, upon the o.th of one or more witnesses, or <.ther sufficient proof before the Governor oranyjusticeof thcpeace: which off-ence, I am hum- bly of opinion, ought to be determined by a trial in the courts of law, where the officer i.u- defend himself and not by the Governor cany .justice of the peace upon the oath of one witness, as it may be b. that law The net, No. 42, depends upon, and i. only for the better ex- ecution of that act. Against (he act No. l(,8 there is the .same objection ; '■"•• >V 'l.at act, the officers taking fees contrary to the establishment therein, .u-e to lose their office-s", and Ik. *'""""'^'^"^<" tb^' <-m.nonga..I, without bail or main- P'-./A', lor the space of three months, and the same to be """".diateiye.vecuteduponb.mor ,hem, upon his or "H'.r conviction, by the oaths ..f two ,.,..di|,l, .vitne.s.ses ^"•••""li-i<.uoftiie party accused, before the (iovernor' "I any jiistu'c ..f the peace. Against thi- act N<., N-'. 'Jieiv i^ tl ■ .• ... '^ ' M. I. 1,- (he ,saine <..))*'ction, or hereby .t ,s provided that the secretary of the is. ;""J- '"• J"s deputy or deputies, taking fWs contrary t<, l':tt act, shell he pn.<-eeded agamst as exU,rtio.,ers, "and hr ever after be made incapable of -.fin., jp ===... ...... i Uffl i ( ! ! ffy I I 392 OPINIONS OK KMINKNT LAWYRRS. II ■ 3j % I t iil office or MTiy oflico ol" j)iil)lic trust whiitsoi'vor within that islimd, and tlic sumu' to bo execMitod upon him or thi'iii, upon his or (heir conviction, hy his or their con- fession, (ir by tiu'oiith ofoiie or more witnesses. In'forc the (lovernor or any two of His Majesty's justices of the peace fiu're : wiierelbre. I am humhly of opinion that the sail! acts, with the said jxjwers, are not (it to re- ceivt' His Majesty's approbation, if (liev have not al- ready had (lie approbation of the Crown, Enw. NoinnF.Y. December Id, 171' (14.) Mr. IVtsf's o'ljrcff'in (;i (Ol (ic* of flu M((iih' .!.<- ■seinhJif. for fic( ir^i'tij hiiriirm upon the -saiiK prim ipf . To tlu< Uiiilit Honorable the Lords (Commissioners of Trade and I'lantations. M V l.ord In ohodicnce to yom- F.,ordships' connnands, ! have perused a law passed in the general assendtly in the in- land of IVirbudoes t'n;'tled "an act t) empower licentiate lawyers to prai'tis(> asbjirristers iu the said i-l;nid IT1"»," by which law it is enacted that every person tli.it is. oi- shall be for the future, licensed under the hand and seal of the (lovt'ruor of tiu" said island, shall be autliori/cd to ])ractise the l;nv a-- fully as if he were a rcLiular bar- rister. I The eoiuiuit lec ol' corresj)ondence .'f the said island do. in their letter to tnei.' ajjents in Knjxland ■■>< re;i^ons for pas>iuLi' the -aid law. urge that it had been llie cus- tom of the said i-iau\ the Kini's inid (Jneens of (Jreat Miitiiii! OF THE COLONIAL roXSTITUTIONS. 393 sinro thoCnwnh:-,.^ fmiuentlv appointed such licen- tiates to actasattornies and solicitors-general in the said island. o. The. nrjre, that the said island was liahle to seve- '■>! :iie..Mvr,dences. from tiieir not having a sufiicient Minnher of harrister.s to transact the law business of the siiid island. I liave also, ,„y Lords, heen attended by Mr. Walker, ;>nd other .-entlemen, who approved of the .said acts be- H.- pas.scd into alaw^ wh.,, in answer to the before-nien- tinned reasons (l.)„f the connnittee of correspondence "1"1 .•ilh-e that the usage of licentiates, practising a8 linvyrrs, did, a' ap])ears from the preamble to the act :in.>e from necessity, and there being no such necessity,' s<. much as iiretended to be, now existing, there can be no reason .b-awn from theiu-e to di..courage the profes- sion ol'the law (.so much as it wouhl be) by the perpet^ ual establishment of the ,siid custom in pa.ssing this act. (li.) That though, at the (irst .settling in the .said is- laud, the affairs of the Crown were left to the manage- I'lent of li.e.itiates, it was ,,u mg to the necessity be ineutione.1, but that ever since the said necessity has l»een removed (which is now two and thirty vears^ago,) tiie Crown hasahvays, l^y patent, appointed regular bar- risters to be atlornies-gcneral in that island. (•!.) And (IN to the third rea.son, they urge, that their lint liaving a sufficient nimibcr of barristers among them i^ owing to the permitting licentiates to pracli.^' ...^ bar- risters. I beg leave, therefore, to observe toNom- Lord.ships, ili.K^f- tlieigm.rance of ti„. |5,i|,sb law -Iocs naturallv (••'id to weaken that connexion and union which e glit tu be kept up between the motb-.>r ..,mut.•^ ...,-i fiw. .?..i 51 • I ' : i I ill Ml . : i i ''^ ■ f ■ i M *f.« Is ■ I -^ •:-i 394 Ol'I.MDNS OK EMINENT LAWYERS. ony, tliorefort.' 1 ciinnot but think this hiw may be at- toiub'd with W'ly ill consoqiiciu-es : siiic*.' it is ()l)vious that English j^jfiitliMiien, who air ivgiilai'ly called to the bar, will have but little eneouiiigeineut to venture abroad, when they see a })eri)etual establishment of li- centiates in that island ; .i'mI which niaj probably cre- ate such a prei'edent as may induce all the other colo- nies in the West Indies tit a[)i)ly lor and obtain the like law, wdiich, as it will leave them little or no reas(Hi to send their sons to 1k' educated here, in Kuj^hmd, will naturally alii-nate them I'rom the knowled^^e and love of the laws of (neat Britain. 1 nnist further take notice, that there are no qualifica- tions whatsoever relatiny; either tooiiths or lel igion pre- Hcribed ity the act. in order to obtain such license to practise the law, but is wholly lel't to the arbitrary dis- position of the (lovernor, \\ho in consequence of it is en- abled to permit even his footman or hi.s black to prac- tise as a barrister ; and since the (Jovernor has no par- ticular p )wcr, by his instructions, to grant such licenses. 1 believe your Lordships will think it more for the hon- in case there should be any or of the prerogative, that deficiency of Iwrristers in the island, they should be ob- liged to apply for licenses at home. However, 1 cannot but own that it would be a hard- ship to take away the privilege' tinion upon tlu" whole matter. I am of oj slionhl not be wholly rt'iected, because (hat might per- haps depiive the present licentiates ot tin- benefit of prai'tisuig but ordered to lu' ii\ aiK 1 I h lope \(>ur Lord.shi|).s will think propter to write to the Governor P-S3 3 OP THE COLONIAL COXSTITUTIONS. 395 1^1 not to grant any such licenses for the future, but I sub- mit the whole to jour Lordships. T o- i^ir, Rich. West. June 2.J, 1718. (ly.) J/y. Tr.«-^'s ohjfrtlons to an act of he S mth-Car- oinm Assnuhly, h,rorporati,uj Charhstown, vpon a new (jnncipJe. To the Right Honorable, the Lords Commissioners of Trade and Plantations. My Lords ; In obedience to your Lordships' commands, I have pen.se.l an.l considered an act, passed in Carolina, en- titled 'an act for the good government of Charlestown " by which act Charlestown is erected into acitv, and the ^mvernmentofit.assuch, islodgedin a mayor, six al- dermen, twelve coniin.m councilmen,and a recorder be- Mdes whom there are several othe. subordinate officers appointed. ■ml, for the better administration of justice within the new erected city, tl.o maycr, recorder, and four al- dermen, have power to determine petit larcenies &c ac c-nni.ngto the laws of Great Britain; and are also em- p.nvered and ooligva to hold, every two numths. a court *'l '•'>'""">n pkas, to determine all actions not exceeding I'tty pounds sterling; and also to hoM plea in eject- ment lor lands within the said city, and to determine tlie snmi'. There are also a great many other privileges and P"^vers ,n the bill that are usuallv granted to new erec- «*'<'<'"n">'-^itions, t., the greatest part ... which I have no "'».!'■«■'"•"!" their being ronlirmed; but vet there are t«-oortbreep,Kiruh,rsin the bill, which to me s.vm altogether unrea.sonable and contrurv to »!... ,..=.fi.......-i .s \ ill f i = "a| ^11 1 396 OPIMONS OF EMINENT LAWYERS. establishing the government of cities in Englan.'.. 1st. It is usual, in England, and most equitable, that the offices, at least tlie mayor, and comii >n Cduncilmen, should be anniral ; but in tl)is new erected cit_v, though indeed there is a rotation ;is to the office of mayor among the persons first nominated in this act, yet the persons so named are to be possessed of their several offices during their lives, 2d. Whenever, bv death or any other means, a vacan- cy happens in any of tiie said offices of mayor, aldermen, or common council, the freemen at large of the city are totally excluded froii. having any share in the election of a successor ; but the mayor, aldermen and common councilmen, for the time being, are empowered from time to time to fill up every vacancy th-'t shall happen among them with such persons only as tl ey themselves shall think proper. 3d. The i ayor, aldermen and common council are al- so, by this act, invested with the sole power of making sue' by-laws and o-dinances as they shall think proper, which are to be lunding to all the fieemen within the city. If the act, therefore, is considered in this light, that the nineteen gentlemen who are nominated in the act to be first mayor, aldermen and common council, arc pos- sessed of their offices for life, hiivj the sole power of choosing their own successors, and the sole power of making such l)y-hiws as tiiey sliall think fit, the gov- ernment ^established l)y this act is the completest oligar- chy that ever was seen ; .since the entire government of this city and of all tiie persons who shall ever dwell in it, seems to l)e vested in thi'-e nineteen gentlemen, theii" heirs, and assigns, forever. '?>»if OF THE COLONIAL CONSTITUTIONS. 397 But besules What I have already meuti,.,K-d to vour Lordships, there i^- another ol.jeoti.m to this act which Kis b.eu repre.sented to me l,y Mr. Shelton on the be- halt ot the major part of the inhabitants of the parish of Charlestowu, which :«, that this act of incorporation was passed against tht r con.sents an.l contl•ar^- to their i.iclmations. and in order to justify what he alHrmed he loft with me the copy of a petition to the assemblv of the province of Carolina, of whiMi he .lid. at the .s^me tune, produce the original, signed bv no less than one hundred and thirteen of the inhabitants of the town which as I am informed, does nut contain in it quite hree hundred persons, complaining nf this art (then a bdl depending in their hou.se,) and pravmgthat it might not pass into law. How far the allegations of Mr. Shelton arc true ornot I c nnotpretend to say, but if, upon in „. KiCH. W EST. (3.) y /.. opinion of th, Attorney and SoUcitor-Gene- ml. \or],e and Weanj, on the unrircum.pd mnh of ■'»,t>uuuuj hws, used hy the Jamaica A ..onhj,, To the Right Honorable the Lords Commissioners of I nide and Plantations. May it plea,^„ your Lordships I" "'-;-»ce to, our Lordships- o,m.„ands.sigmlied to us by let er from Mr. Popple, transmitting to us oopi.,s ';"wo bills sent ove. from Jan.aica, the one entitled "n act for granting a revenue t.. ilis Majcstv . heirs ;"..! s:,..o.ssors, tbr the support o|' the government of this islMu.l, and perpetuating the a<'ts and bnvs tl lercol as ^m ■ i Mi 'ft =uiiiu auu ai uaed ;■- and the other, euUtlcd 4 I 1 398 OPINIONS OF EMINENT LAWVER3. "an act to augmcMit the salary of his Grace the Duke of Portland during his residence in this island as Gover- nor ;" together with an extract of his Grace the Duke of Portland's letter, and copies of other papers upon this subject, and requiring us to let your I. ordsiiips know whether we liave anv objection to the said bills in point of law : we have considered the said copies of bills, and other papers referred to us, and herewith returned, and docertif^^- your Lcrdshi[)s, that the principal considera- tions arising upon these two bills, appear to us' to be rather matters of prudence and policy, than law, and, therefore, not to be strictly within your Lordships" di- rection to us. As to the revenue bill, wc cannot but observe to your Lordships, that though we do not find any specief of commodities charged with imposts by this bill which were not charged by the former revenue act, yet the imposts upon several species are greatly increased, and particularly upon certai- liquors '"iported from Europe. The duties upon sugars and indigo are much lessened ^ ihis bill, particularly that upon indigo, irom Is. 6d. to 3d. per pound. We observe by the copy of his Grace the Duke of Portland's ^ • rie-si, sent down to us, that it was a matter of doubt, in Jamaica, whether this reduc- tion of those duties wa.s consistent with his Grace's .'2d instruction ; but upon consideiation '>f that instruction, this reduction does not appear to us to be contrary to the terms of it, because it cannot take olf, or in iiny wise affect the general prohibition of trade with tlie sub- jects of Fi ince, for the duty can take place only upon indigo lawfully imported, and not such as is prohihitcil. J3ut if tlie trade of that conHundity lie cliicllv in the hands of the French, and, notwithstanding the ucnerai nroiliblf mil of fl';i(]i> 'uv*; lii>t>ii 0!\yr\ni\ jtnwitli tin ;.i in a OP THE COLONIAL CONSTITrTIONS. 399 clandestine manner (which the Duke of Purtland's let- ter imports,) whether this reduction of the duty will in conseciuence tend to encounige that clandestine trade, or rather to increase the open importation of indigo in si lawful way, is what we are not sumcientlv enabled to judge of, but is proper for your Lordships' consideration. It IS further to be observed upon this bill, that the revenue given by it is made perp^' ,al, and the laws con- tniued by it are continued for ever, which makes it the more necessary to consider whether the provision be such as will bo s -ient to answer the exigencies of the government ; for if it should happen in the event not to prove so, the people of the island having their laws se- cured to them i . , erpetuity, may think themselves in a better condition to withstand even reasonable demands which may hereafter be made by the government, to sup- ply any deficiencies on that head, than thev have hith- erto been whilst their laws were temporarv and preca- rious ; and this seems to us to be of the greater weight, by reas... o^ the unusual meth.Ki taken to annex to this bdl an e..,.-;-iate of the annual expenses of His Majei.- ty's government in this island, by way of debtor and creditor, which by reference is made a part of the bill itself and is computed to amount to £8000 per annum, and the clause whereby the assembly have engaged themselves U) sHpply deficiencies, is only upon the con- tingency of this revenue fvlling short of that sum, and to make that good. The clause concerning the l-iws of the island and their •untinuance is penned in a manner much less liable to exception than that sent over the last year, though not s.. free •rom objection as might have been. The ellect olit is, that this act and all acts and laws i P r ! i |f • - ri ^1 400 OPINIONS OF EMINENT LAWYERS. m as they now f^tand and are accepted and used in Ja- maica, ar'j tliei l)y declared to be and remain in force for ever, (except the preseiit revenue act, and four acts of asfienil)ly lately pas.'^ed. which are particuhirly spec- ified.) This chuiM' concerns two kind.s of hiw.s ; 1st. such laws of England a.s have Ijeen accepted and used in Ja- maica ; 2d. acts of asseinl)ly of the island: Ave ajjpre- hend from tlic words of thi.s clause, and from tiie coun- cils answer to the Duke of Portland's 4th and oth (/// <- ;7<-'?, that the first sort of laws are what the asseiuljly had now especially in view, IJul as it is coidined to acts and laws as they stand acce|itt'd and ii~cd in the island, we conceive no incon- venienct- can follow from it, bec^ause no other part of the i.iw of Knuland will })e established thert-by, but such as by acceptance and usage in Jamaica hasalirady (gained the Ibrce of a law of that island, and such would continue to be the laws there without tiie assistance ol this bill. Tiie greatest objection to this clause concerns the acts ofas.sembly of the island ; for as it is now penned, all their tempoiar\ acts of r.ssenihly which arc at present in force will 'im- made perpetual (except the four, which are particulai ly excepted.) and it can liardly ha|ipen but some of their temporary laws are not fit 4,o be continued for f\ci'. at least it seems fit. that they should lie tiilly looked into and considered, before tlu-v receive such an estal)li>luiicnt. As to the 1,111 lor augmenting the Duke of l'orllaiitr.s wilary, we have no oiijcction, in pouit of law , aL',aiiist the ^ame Jid\ C, 1725. IV Vonhi OF THE COLONIAL CONSTITUTIONS. 401 (IT.) The ^oU fo an act of ih- Jamaica A.s.mnhh,.for it, vnreamnahlene.s.'^. To tlio Right Hon. the Lord.s Cununi.s,.ionors of Trade and Plantations. My Lords'; In ohedionco to yoin- Lordship .' rommands, signified In Mr. Popplo, in the letter hereunto annexed, I have •M.n.^idered of an act pa.^sed at Jamaica, entitled "an a't lor regulating fees," and i-arti ■ularlv of a elau,^ wh.eh ohligo. lawyer., to t;,ke retaining "fe^-s under a !>-n;.lty. andufone other clause f .r qualifving of wri- ting .lerks ; and having heard Mr. Baher, 'on behalf of liinisclf of M,-. Compier. receiver-general of that island, an.l of Mr. Winter, clerk or register of the court of chan- na in the cau«e scrv.Ml on, the d-fendant, and th.- clause vvhi.di requires •■'•'■fain qualifications m writing-clerk^ ^cm to me to i'c \.-ry unreasonahle, and t'.crc 1- nothing in iur law "'n"'"'li<''-<'!' Kutxlan.! which favors any .such regnla- '""" ' ''■'^'' "" ohjcction to any other part ofthe act, •"il Iliink It r.-as..na}jle and f.r Hh gn,,d ..ft},.' island. Ma^ l-J, 1710 "•^""•'• d2 ' i If! ' I 402 OPINIONS OF EMINENT LAWYEHS, r^g*=S*'!a^ (18.) Th' oljtcthn.il of the Atto'neij and So'citor- G neral, Jiydiraiid JJitrray, to a law of Xovth Carolina, as btiii'i contrarii to ri-a- thi^i kinijdoin. Tu tlie Right Uononibk the Lords Commissioners for Trade and Plantations. Mav it i)lease voiir Lordships ; , In [)uisuance of your Lordships' desire, signified to us by Mr. Hill, in his hotter of the '2d of April last, rep- resontiniT that your^Lirdships having innler your con- sideration a nieuKirial of several British n erehauts, praying the r'-peal of an act parsed in the province of North Carolina in the yeai- 171"). l)y the pniprietors of tlie said [idxiiiee. cnliih'd -an act concerning attorniees from liircign |t;ut<, and for giving prinrit\ t(i cduntry debts, " and lia'.iniiuihg the anui'Ni'd copy of the said act, and di'^iiing our (i|>iuioii with re-^prci > the \;didi- ty thcreol', uuil whether the .•~aiuc is or is not repealable bv the Crown, it having been contiinied in use and sub- mitted til in liic >aid nrnviiue trout the time of the pas- Ming thcrcnl'; we iiave cousidered the aniU'Xi'd law, and are ol" opmi'in that such part nt' it a- pn.stpoiies the exe- cution on )ud'j,uiiMits for fnn'iuii delits, in the uf;tuiicr therein provided, is cnutrary to rci-on, inconsi.'^tent with the laws, and gn-atly prejudicial to the intcrc-ts of this kingdom , and. therefiirc unwarranted by the chmtcr, ami, con-cipirnily , \ oid und we arc of opinion, that His MajestN nia\ declare ti;e saiiu- to be m», :ind hisit.\;d disallowance hereof. I) lv\I>KH June 3, 1717. \\ . Mtiut.w. Wk M'^ OK THE COLONIAL CONSTITUTIOXs. 40S (lO.)J//-. J'aiit'fi oLs-c)'valio)h<) on ihiart ofthe Virginia .U-^,m'>l;i.for ,;Jicfof t},eColh-.ie of Willi' ,m and Manj. To tliL' Kiuht Hon., the Lords Commissioners of Trade 011(1 Plantations. Mv Lords; Inobedi-Mu-c to your Lordships' t^ommands. sijrnined to mo hy Mr. Popple s letter of the 20th instant, wherein your Lordships are idea.^od to desire mv opinion, in iv.iutoflavv.u-h.th.r the €2)1 per annum, appropria- ted l.y Ihe aet (passed in Viririnia in 1720, entitled an art lor layinir a duty upon liquors) for t he relief of the colle-e of WiHiam and Mary, is therehv directed to be .solely ai)plied for. and towards, maiutnining and suppo.t in,- (he full number of masters „ud professors who arc t" «e.ide in the snid .;olle.e. I have eonsidereil of the.suiu', i.ud am humbly of, .pinion, thou-h the pream- ble to theclau e vvhieh appropriates fj, . ,C2lM) per ^n- ""'" "'•'"■^ l'^»lieularly,;drulut..,l tn provide for the '""""'■•"""•" "I' the full number of m,.>ter. ,„.] profes- s' IS ; yv\. thv eu;..(i,,^r ,„,, ;, ,;^. ,|„, ,,,.1;,.,- „,- ,,^^. ^^^,_ l"^VM.;:eneral, auddireet.^ the paviueut of the duties '•"I'-'n.^tee. until the trau• ^""' '"'■""■ l"'.rbaM. of bookvau.l other ""•.-^..ru.., until tii,. said eoll,..,.,. shall b<. a,tuallv bu'lt '"^'"'"""'•"1 • Hem they were , > a^M^u what land and ;;""7"'"-^ iK.-lto the pre>n|..nt and masters, .0 that theolurterovpresslyevelud,.. ,bo masters and profes- '"7''' '"'^ -Ivnnta.ire.uutd th. eoll-gc was linishcd uud provided With aU nucosiunctf. M 'i; \i * wim .avLwm . 404 OPINIONS OF F.MINF.NT LAWYERS. The Ici^islnttii'C hal, iii(U'o;l, in view, the provision and miiintfiianoe of tlu> society, to oncounige them in their studies and the servii'e for which the eollei:;e was founded. — that was their principal design ; hut their intention heing plainlv subjected to the charter, nnist be guided by it ; ami. indeed, those general words of re- lief nmy, I eonceixe, very properly receive (he construc- jon here given, because the sooner the college is built, l)y tliis additional income of ,C2tH) per annum, the soon- er wiM tla'v receive this allowance. Tliat the president, muster and fellows, cannot have immediately this £2l'(l a year, is, I apprehend, self-evi- dent, because the trcisurer is dire<;ted to pas.s it liaif- yearly to tlu' ti iistees until it shall be transfern-d, and from such transfer, then to tlic snp[K)rt of the masters and professors ; it i> not to be tor tlieir support till alter the transfer, and. In the ih,irler,uo transfer can be un- til the collcgt' be built. if there had I'cen the same words in that pari of the fl;iu-c concerning the pay incut to the trustee-; hall' yearly, th.Lt the trustees shnidd |>;iy these >ums t<> the suppint of the masters, as there are after the transA'r, they might then ha\ c had .some col- or for this demand ; but it i-; wholly rdatixi to the chartei', wliich oi'tU'; - .jkI direct^ the building .'lud other necessaries to lie lii-t iiimiIc .nul pi'ovided, bcfun> any salary can Ik- allow cfl tlu' pr )l'c-.ors. Hut uliat maken it clear, I appi'ehend, even to a demonstration, tiiat tin,' clause cannot lie considerei I witliout having relation to the charter, is, thai no tru.vtees art .k tually nan 1 in the clau'>e, but the trustees of the college : and. there- fore, >h'>uld it n i iiave n reft'rence to the chaitcr, the clause itscll would be «'ntir<'i\- void and of no elVi" t. lor tl.cru wuolii bu then uo uuo cmpowcruU \)o i-ouuivc Lhid OF THE COLONIAL CWNSTlTrTIoNs. 405 £2!ll) per annum, for any purposes at all. Hut 1 would submit it to your Lordships' considcra- tion, wlu-ther it might not he proper to provout design- inii- men hereafter from putting a construetion upop that • liniH' dilferent from what seems to he the most equita- Me ami natural one, for your Lordships to recommeud to 1 1 is Majesty, to signify to the (Jovenior ol' this colony, that the construetion I hund)ly put upon this clause, (supposing it is agreeahle with your Lordships' senti- nients) is the sense His Majesty would have it taken in. Tin-, with humhle submission, would entirely prevent lutu.e misapplications, supposing there was an inclina- litiu in any one to do it. April 20, 1727. Fh.x. IMNE. (2it.) Tht oljt-Hic^xa of the Attorn,, i-G, in, -al Xorthq,, o!> x>,/// i,f tht Viiwjinid arts. HI 1701. To the Right Hon. the Lords Commission.T for Trade and Plantations. May it please your Lordships; in humble obedience to y(.ur Lnniliips" .,rder (^f ref- '•n-ure, .ignilied to me by Mr FoppI,.. 1 have perused and CO, ^ideredofthe -verallaws hen.;.lter m.-nti.,ned, p:i^M^d in the general >embly ,,f \-irnini;. iuD.T. 17(|(| August 1701, and Mi ■d .\ugust ITOl', viz : -'an act, forcmtinuing the ad ^ hibiting the rvpnrtation of Indian corn;' -an act, making tbr F.en.l. refugees in- habiting at the Mamiikin town and the parts adjacent, a •li^lMct p;,nsh by themM-ivc-, ;,nd exempting them from the pavment <^f pubji,. „„d .•niintv i.x ie.. in,- seven years;" '-an a<'t. foi more eii.-,|u:,i ;,nd '^peedv can \ ing <»n therevisalof the laws; an a.t f,,,- l„e raising a public levy i" -un act, lor the more ellcctual aonreheud- 406 OPINION'S OF EMINENT LAWYERS. ing ail outlying negro, wlio hath coiniiiitted divers rob- beries and offences ;" • an act, givinu' power to the sher ifts attendiiii!; the general court, to suninion jurcrs and evidences, within the city of Williaiii- ourgli, and one an act. continuing llie half a mile nnuid the same; acts laving imp,)sitions on li(|uors. servants and slaves, until the !2oth of Docemh^r, 170;' workmen employed for Innld- ing the capitol :'" -au oi-dinance olasscmlily, for settling the l>ound>of Islr of \\'iu:ht, S urre\' md Charles Citv counties, on tlie south side of iJlack Water Swamp :" '•an act, for continuinir, meeliiit:-. and siliiuLi-. of geneial assemblies, in ca.-c of the ilcath. or demis ■f Jiiv M '.1- estv. his 1 leir; lud succi'.-sors an act 1o prevent iiiasiers ol >lnii^ oi' ve "b runinng awa\ alter cnioar- iroes are ;r,i ordmiincc ol a--en;iiiy. ior settling ividing lines between the coimtics of l>lc of Wiiriit. the d Surrey. Charles (.'itv, and Nan>iinoud, on ti II' soutli side oi IJlack Water Swami) ; ' -aii and settlement icrne tor til an 1 acl -piitc ir the icgnlation of public e\i)i-('SS- tr the --peedy transporting of foice- over riv er' and eit. ek.- Ill time of daniier ail act, for [)rohibitiiijj: seamci k lug iiarliored or enti'itaiicd act for diviiling Charles Cil_\ i(iu.it\ ;" ing a public levy ,' --ah ordinance of ilefeiK'e of the co \\ hicli 1.1 w-i, vi/ oil tioic an .III aut fir ruis- llllliX 1 i lUh a--ein ijanuer bb lor th oine o: tl act, W'v eoniiiiiiim: an act |iroiiibi- tjng th.' cxportaluai of Indian euiu ; the aa mad m or TlfK COI.ONtAL CON&TITl'TiONS. 407 1700, tor nn-.inp :i public levy : and the act, tor oontinu- mj? the acts layin,ir impositions na li«,i,ors, &c. I find are expired : and the ordijiance of assenibh". made in 1701 iorseltlin-the ooundsorthe Isle of Wiirht &e is re- pealed. The rest of the sai.l laws. I conceive, are agree- al.let.. lawand.inst.ee, and do not contain anv tliincr prepuhcial t<. Her Maiestys prerogative, save onlv such 01 them. an.I in .nvh pon.ts and particulars onlv,'asare heren.alter mentioned and ohs,.,ved to y„ur Lordships, VIZ : as to the act for exempting the French refugees tioin the payment of puMic and count v levies for seven years, I have no objection to it, provided that the public and county levies be taken to be such as were in tbfce at the time of making that act. As to the act for the revisal of th.. l^nvs. as I have not seen the powers given bv the act of the '>7th of AprilKi!.',.. refened to by thi^ a.(. I eannot judge whether tins be proper to be conlinued : if the powers thereby .-.ven lo make laus, it is not (I .•unceive) fit to '"^'•"»'i''">'"l: ifonly to prepare to lay before the as^ sembly, it will need no confinnation. As to (Ik- act f,r appreheiidinir ;,,! outlvinti negro who has.Munnntt.Ml divers robberies and olienrcs. the a<-t at- taint^ a n(.gr.) slave, alleged to he a robber, without giv^ mg h.in a day to render lou.self which f think is'.ot reasoiiab|(\ Asl,, tic.aci fnr the better strengthening (he fron- tiers,and di if 'vv^n after tho ewibarc- (M'.H nr<> liiiil «li 'i i r f ' ■ I- ♦|-, I* ' 1 408 OPIMUNS OF EMINENT LAWYERS. act being to ohlio-e uU ma>4ters of ships, wlien tliev make tlieii- entries, to u"i\e liond not to depart Avliile an em- bargo is laid in Virginia, I am of opinion it is not tit to be oonlirnied absolutely, but for a certain time, and till Her Majesty, her heirs, or successors, shall, in council, order otherwise, for it may happen that ill use maybe made, by lading embargoes tliere for private ends, tu the prejudice of trade. Edw. Nohthf.v. (21.) 7'1/e Solicitoi'-GeiKval Ilaroiiri's rc-po /v. on t'le arf-^ of the B r»r:,/ mili- tia. Audi have Hkewise considered of the .several "(her acts, pa.ssed at a general assembly, held in the Ik'nnuda Islan the Governors and coui^cil of Bermuda;" an act, laying an imposition on all Jews, and reputed Jews, trading or meri handizing in these islands :" "an act for the continuance of an act, entitled, an act for raising a public revenue for the support of the government of these their Majesty's islands ;"' "and one other act, entitled, "an additioiml act, for raising » pub- lic revenue for the supix)rt of the government of these their Majesty's islanrHon, in any plaee, and upon any employment, as the Governor and council shall order, for satisfaction of the said" debt, but no rule is laid down to ascertain the rate or price for which sucli person is to serve, nor when the debt is to be satisiied. nor luw the debtor shall be di.seharged from his service. ?er>uns of very good ability, (especial- ly strani-ers.) throuuh misfortunes or aceidents, may be in prison for delil, and unable to pay the same within ten days , yet such ui sous are etpially liable as persons really insolvent, to 'tecome servants, to work out their debts. Thcmgh persons insolvent, only, arc mentioned in the title of tiie act, yet this law extends to all persons whom.soever, and lO all del)ts, witliout any distinction: I think this act not lit to l)e contirnied. "An act for putting out apprentices, and setting idle people to work."' This act directs such as are of the age of fifteen years, and living idly, ami not having wherewithal to main- tain themselves, to be forceil to work or go to service, as is required by tlu ^tatut.■s made 7 Jac. 1. cap, 2."), and 28 and there are not an\ such statutes ; but this act r.'fers OF THE COLONIAL CONSTITU HONS. 41S also to .several other laws, which may Ixj of great use, ami tiiercfore may, without pnjudice, he confirmed. '•All act ior settling intestates estates." This act in No. A, is right^ referring to the act made in the :>2:in(lli3 of Crtr. II. chap. K) ; hut in No. B, there is a mistake in the chapter it refers to, it men- tioning the 11th, instead of the 10th. "An a(!t for the liherty of the subject." The statutes of Hen. III. and Edw. III. referred to ill this law, arc unnecessary to be enacted wit . these islands, being declaratory of the common law of Eng- land. If the IGth Car. 1. should be ther' in force, the juri.sdiction and authority of the Queen in council, m making any determination concerning any lands, tene= inents, goods, or chattels, on appeal or otherwise, is wholly laid aside. This hiw likowi.se enacts, that all laws in force iij England, relating to liberty iid property, shall be alsq in force within thoise islands, which I conceive to be very improper, and ought by no means to l)e approved of. "An act for quieting men's est;>^>^, 'nd preventing law-suits." A statute of limitiition is undoubte. . least as nec- essary in these islands as in England ; but this act is so \eiy imperfectly drawn, that it will rather destroy mens undoubted rights than cpiiet them, and create law- suits than prevent them. An actual enjoyment, for twenty years before the ma- king this law, without any claim, rent, service, or ac- kiiowledgnunt, and five years continued enjoyment af- terwards, or the like enjoyment lor twontv years at any •itiio after the making the act, is turned into an absolute estiite uf iuheritauce. ( , i i i ^t ('■ 'h f:% I > If 414 OPiNIDNS or KMINF.NT I.AWYKHS. As ttt tlio limitiitioji (if llvo yciUH after the making the act, 1 (H)ii(H>iv(' timt time to Ik* nliort, aixl perwm.'^ who .''■••.la rij^lil ot'»Mitrv mij,'l:t Ih* siii|)riseOHsi'ssion of the ti'nnnt, tor yrars, durinjj; wIioho poHHCs- sion, 'lii-N ill n'vcrsion or romaindiM', cannot, by law make jiii\ entry or claim. The p.ovisioii in tluH aut on^ht to have been agreea- i>lc to t!ie Mfiitute ollimitation.s, miule in the twentv- (irst year of Kini,^ .lames l.,\vlu>rel)y persons having aiy right or 'title, ari> oidiged to enter within a certain num- ber ol' \ ears after smli right and litlu of entry accrued to them, or. in defiult theit'of. are debarred. For the iiiipi'i feiM drawing of ll.is ic*, and the ill con- HO(iueiic»-,s (|i;it iiiay jiris<' tliereby, 1 <'onceiv? it ought t«) 1k< rejeeu li. 'An ac> tor the nlteratioii and nmendment of several act.w ol" asseiiibi V. ' I'art o'" 'is act varies part oi' tlie act l«'fore iM'>ntion- I'd, fo.frxing !in\ s, but leaves it liable to the obji-eiion belwic maili> to it ; and, therefore, I thiiil': this act not lit to be (('niirmed, though 1 have no olm*c- ti(Ui to the r.sldiie of the act. *.n act lor liberty ol" the siih;cct from dlegal impris- onment. Ties act gives the entire bene!" '.f the habea.-j corpus ret. made HI the ;{ 1st king Charl 11. t.. tlie mhabi- taiit.s ot' this si iiid. Tli(>y h,i\c all the biin fits of the writ .i|" l:,il;,is ,^,r- puf. wbu h liu' ettnunor. law of Kngland gives against ii- legiil impri-^oniiu nts. It nm.st be .siil,initt«'ii to your OF THE COLO.N/AL CONSTITUTIONS. 415 Lordships, whether Hiuh an net, in thom; \K\vtn, will not lesHPU tlic (lej)en(lenee upon the Crown. 11' HiKih a law she.ild not he thoiipjiit iiiipro|)er tiiere. yet tlu- grxnti . h/y>//.v oii^ht not U. [)o iii the jMnver (.1" every 'An ;i;'t! ) prohihit any Irrjiu relaihn^r nnn ftfid li (pior.s, iHihlicly. vrithont li( Tl ■use of t!,e justice of|)ea residue of tl le scvrrnl nets con'^ennng which I ! e mad ' no pnrticnlnr remark your Lord- ships wiii ohserve that very many olthem were hnt tem- porary, and are determiiu'd se'cral yeiiis since, and few >fthem drawn so carefully as they u\\^\' to he ; and in iiiiiny of them thero s -em t») f»e luistakes jii fiRnscrih- lUl^ ho\ \'ever, law, as t< \>\\ I 1 tl lavc no such »hj<'ct ion, in xtint of ise the rcjectiii;^ of (h. m. Sim. TIah(oi'»t. Dec. r,, 170:{. si I , To tiie Hi^ht llonorahle the I Tnui e !iil( May it pl( n o.'H'tlieiM lit d IM inta ease yoi e to yo ■ h Mr .ur. vouniu.ssidners of tions \v Lord>hips ; or [,onlshi|.s' (irdcr i.' reference, '. rojiple. I jcive (on.salenMi Mk- several iwt**. passed at a genenil as <('M 1,1 \ , held in the llenmida Islands, (under the |,'ovenrrientof .Mr. iCichier,) »i't*<, ! the citnnnonlv calh'd signitied to m« m IC.'.Hi-j, vi/, • ^in let for vacating tne indelinitt made in the last ureneral assrinnU strict ohservation of tie" Lords da\, Suud an ay ;" 'an act iigainst swc'ariiif; and cmsinjr ;" "m> I M * 'I iV 416 OPINIONS OP EMINENT LAWYERS. act ngain.st l>astrtrcly and incontinency ;'' " an att against gaming ;' '-an act for the keeping a diligent watcliand guard, at tlie castle, and Pagitt's Fort ;' an act for keeping a good look out at the mount in St. George's ;" ''an act for the estahlishinr and regulating the courts of judicature ;" 'an act tor the n)ore .s|)eedy recovery of de})t,s and damages, by merchants, strangers, mariners, &c.; ' "an act for trying any debt or din'cr- ence, not exceeding twenty shilling.^, I)y tiie justice of the peace ;"' "an act for the recovery of debts, from per- sons insolvent ;" "an act preventing mischiefs by dogs; " "aii iR't to prevent parish charges, by poor persons re- tnoving from one tribe to another ; " 'an act against buying and ingrossing corn and merchandize ;•' "an act, directing what warning is to ])e given to a tciiunt al will;' "an act toprexcnt destruction i)i l)oundiiries ;" "an act to prevent dcstiuctiou of Button Wood ;' an hct against the i-«'moving and taking ;;\vay l)o;its from fheir mooring j)la(;es ;"' 'an a<'t against deceit in making up tobacco ;'' "an act for jtutting out ap|treiitiiH's, and ftcfting idle persons to work ;'" "an act to prevent bu\ ■ ing, s( Uing, or bartering, with negroc -, and other slaves;" "an act I'or trying negroes and slave.«< ; an ;'ot for young men to jiav parish duties ;" "an act for \e.s- fels paying powdiirnoiiey ;' "an act to prevent .st";d- Mig corn, jwdmeto tops, and provisions ; "an iict loi- rr- fniiring the highways; jin act (r. preveirt daniiiirc.. h\ cattU'. poultrv, ^:c.;" "an act for maintaining the pubhi bridges;' "an act topicvent tl,. o<-slrnction and trims portation of palmeto tops anill'rooms ; an act for <,.t t'ing intestates rstjite.s ," 'an .ict tiir prt vcnliin' dillcr- ences almut dry gocKJs. importi'd into these island-^ ; iiri l*et fc»r the liberty of the subject ; " "an act .iIkhiI jiiead ■ Ml OF THE cnr,OMAI. tONM ni; rioNS. 417 ins ;■' 'ail act, appointing,' tlu> nnnil.or of the a.s.scuiblv and resi.stering the arts;- '..n mt for iv-nlating the niihtia;' -^un act for liUorty of vessels iroing ont ami coniin- into, these islan Is :' .,,„ ,„,t f.,,' ,p,ioting men's estates, and preventin.o- l.Av-snlts .• all which laws are <"ontau.. therenp.n, are liable to the same ohjectiun tl'-acls hen.g either rcr/>./^/,;, the same, or e. nlaining m'. material \ariance. It , . !-,>.. ''^'^' " \i{' Ol HT. (22.) '/■/„• .mm<'.hiwyer\s,:j„>,l n„ tL art. nf tl>r .,am,^ Amenihlif, 1(598. ''';,""■ ''^-'" «I"n'>nvl>le the I.onI ( nmmixioners of I i-ade and Pl;nitatinii- May it pl.>a^e your I. .rdvhjp.M. '" -'-'li-n.-. to y.,nr Lonlships' urd.r of >ef,,en.<.Kndi.d t..me l.vMr. Popph- F have eon>idered the several art, parsed at a. r-n-rai a^-en:I,lv at M( rnmda ■I'"!'"'- the govrrnment ofSanmelDav Kh, t'le iJlst of <>''t4)her, ICDS. ■ ! 1 1 i 1 i \ 1 % ♦I 418 OPINIONS OF EMINENT LAWYERS. 1. An act for the restraining and punishing privateers and pirates. 2. Va act to prevent stealing of oranges and other fruits, 3. Additions and alterations to the act, er*^itled "an act for repairing the highways," 4. An addition to the act for the trying of negroe» in criminal eaus(>s. 5. An act for addition and ainendtnent to an act, en- titled 'an act to prevent the destruction and transport tation (vf jMihneto tops, iind T>r()oms." The act for restraip.ing ami punishing ])rivateers and pirate , as penned, seenvs lijihle to se\eral oltjections. Bv the first enacting clause it is lade felonv, with- out henetit of clergy for any person who then did, or within four years tlicn i)ast, had, or at any time after- wards, should i'diahit or )>elong to Miis island, to serve in America, \n a hostile nuinner, under any foreigji prince, state, or potentate, against any other sovereign, prince, state, or potentate, in amity with the King of England, without license from the (lovernor. There is a proviso that this clause should not extend to any person then in service to an\ fore:j;n state or potenUite. who shonld <[uit sueii service l)y the 4lh of August then loildwing. As tiiis part of the liw is framed, persons not guiltv of an\ iiime whatsoever tna\ he liahU- to suffer death they may enter into the service of an\ foreign prince, state, or iiotentate, w ho arc not in hostility with anv of the lilies of Hngland, and if atterwaids wur should lircak forth between sucli fon-ign priiiee, stal»', or iM)tcn- tate, into whu.xe service ti y entcr<(l, without hein^' guilty of any crime, with any other sovereign, prince, ■-%' or THE COLONIAL CONSTITUTIONS. 419 .state, or potentate, in alliance with England, though the\- are forced to continue in the service, and should quit the same so soon as they have an opportunity so to do, ant^' return home, and submit themselves to the Gov- ernor, yet are they guilty of felony, without benetit of clergy, for such tlj-Mr involuntary continuing in the ser- vice, after the li istility begun. By the next clause in tlu ict. all trensons, felonies, pi- racies, robberies, murders, or conspiracies, committed, or to be committed, upon the sea, or in any haven, creek, or bay, where the adiffiral hath any jurisdiction, may be inquired, tried, and judged within the island, as if such offence hud been committed within the island, and for that purpose' a special commission is to issue, and such piooeedings thereupon to l)e hi in England. Tin- said olfciices, by virtue of tills ad, to l)c tried by special coiriiiii^slon uilliin tiic Island, arc nut conlined to offences <'oiiimitti'(l within any particular limits, l)ut in what part of tlie world scH'vcr, upon tlie sea where the aduiinti hatii jurisdiction, any treason. i)iracy. felony, robbery, nuirdei', or con.-plracN sliail lie committed, or supposed to be couimitted, au\ )>ersoii may l»e taken, and larrled prisoner to the Bernnida islumls, and there trii'd aud evccuted lor the .-auie. |{\ aiKttiier clause lu I lie ait, e\ er\ person u Im >hall knowingly cuterlalii. liarUjr, couci ai, tiaile, or hold cor- \ l:'.f M u i ' 420 OPINIONS OF EMINENT LAVVYERS. respondoiice with any peTSDii (IceuitKl to he a pirato, or other ofioiider witliiii the cnnstnic'tion of this act, ami not endeavor to ai)preheMd Micholleiider, shall be prose» euted as an accH'ssovy, and sutler the like pains and penalties. A person may ku()wine a |)irate or such olleudcr. This clause, as penned, inii\- subject very innocent persons to be prosecuted Ibr their lives, iur trading or corresponding? with persons^they neither know, nor sus- pect, to l>e pirates or oli'enders. For these reasons, (however necessiiry some law of this kind may be within thcsi' isl. aids,) I humbly con-, ceive this law not tit to be aj)i)n)ved, As to the other four acts. 1 iiave no objection to eith-. or r>f them in ]> int of law. Sl.M. JI.\Ui^OlKT. July :i8, no-iii(iii on li'pioi--^ and sugars im- poitcd .ind fimb'd m (hi'--e i-lands 2. Aiuac! to prevent the oppression and extortion of officerfl. ■ ^ ., ;- ■mmSs - OF THE COLONIAL CONSTITUTIONS. 421 3. All iict laying an imposition on liquors, &c. 4. An act for ostablishinj; fast days, to be celebrated in tbcse islands in an anniversary course. ■"). An act lor the speedy reparation of the castle, forts, and platfoi-ins belonging to these islands, and for building barracks with chinuiies to each fort, where needful ; and for raising a present supply of monies for that cud. b. An act to prevent the evading of pa\uient of just debts, and satisiiiction of damages. And 1 humbly observe to your Lordships, that theack for imposition (m liquors, &c. expired on the ;kl of July, 1708, notwithstanding which, the fart re. tod in the preaml)le of this act may deserve your Loidshlps" eon, .-idcratioii. It is recited that an imposition oad been laid on li- quors, to eontinue for two year- oidy, at a former ses- sions oli.ssend>ly,held under the government of Samuel Day Ks.,,. but that, by the clerks negicrt, a whole para^ graph in that act, which is recited to be tiinponii\ . wa.s • ■iifcrcd on record as a perpetual law, and that the late ly, had assured them to represent the .same tn lii- late Majesty, and tliat the collection of (be rates, imposed by ll'at a.'t. should cease till his Majot^ s pleasure WiUi kiinwn. W hetbei' that act, entcn'd upon rei onl auuMot the i l! acts ol the assembly (»f tin- islanti as a pcrjH'tual law, |-> 422 OPINIONS OF EMINENT LAWYERS. and traiismittei] as such by the former Governor to be eonrirnied. I)e yet confirmed or not, does not appear to me. But it appears t'rom this recit^al, that the present Gov- ernor. 1)v his own authority, at the request of the assem- bly, has stopped the further collection of the rates im- posed b\ the act. passed under the government of Mr. Day. upon the alleviations recited in this act. The net to prevent the oppression and extortion of of- licers, passed the Gth ()♦' July 1701, appears to be re- pealed the 14th of November 1702, otherwise ♦he said act is liable to objections. As to the tour other acts, I liriv no objection to eith- er ol' tlieni ill [)oiiit of law. Sim. H.\rcourt. duly 2S, 1704. (2 i.) Mr. 'W/sf.s ()/>/(( tioti-s tnp|ily thedelieieiicy of .s«>»'eral funds in these isliiuds, for liiii-.|iiiii,^ and completing a house for the present ind ^•ucceellillir ( io, crnors, and repairing the castle and oth- er forti'ications. and for delVaying the other public char^i- fA' liie.-e islands." Tlie art recires. that an act bad bei'U parsed, amio 1713, by which a duty of 31. i>ev cent, was laid upon all OP THE COLONIAL CONSTITUTIOIVS. 423 goods imported into those inlands, to be applied for the purposes in that act mentioned, which act was to con- tinue for the term of two years only. It also recites that by another act, passed anno 1715, the former duty was continued for the term of seven years, and an ad- ditional duty of 21. per cent, more was laid to continue for the san>e term. As to the present act, though I cannot say there is any great objection to it directly, in point of law ; yet, 1 think, I ought to observe to your Lordships, that the purport of the present act is to continue the last men- tioned increased duty of .51. per cent, for no less a term than one and twenty years longer ; and as a duty of this nature must chietly, as I apprehend, affect the importa- tion of British goods into those islands, I submit to your Lordships how far this act is consistent with the Gover- nor's instructions, more especially when it is considered that the duty is not to continue, as fornicrh . for two or seven, but for one and twenty years. r, , , , Rich. West. February 13, 1721. (25.) llie ohjcctions of tJie t^ww lawyer, to ,si>ii'dy making, at that time, any further ob.servations than are contained in the .said report ; l)ut as your Lord>bips are pleased to desire my I'lu-ther opinion upon this act, I nuist ob.serve, ihat this art is drawn and worded in .<.> loose ;,. d incorrect a iiiMiuier, that it is with dilliculty to be imderstood what IS meant and intended by it, or iiow it would properly be carried int^) execution. What I take it to be the in- li iXil y\\ m (I 1 M !|1 'I 426 OPINIONS OF EMINENT L.\\VVE»S. t«nt of the act I shall here mention, iuvl tlr ii ( bscrvo the diflficulties that attend the e\t •ntin:: oi' it. It appears to nie that this province is at pic-^e; t indehted to several persons. u|)()n hi is I^iuhtIv e:nittcd. the snni of£10l),0!)l) , for which there is no secin-ity or I'nnd for the pavraent, and that hy this act a f;!iid is inleixled to be provided for the paying tlieai oil", and ior ci-eitin;^' an additional cnrrency of .CllO.OOO. I}y this act £2111.0(1(1 new hills are to he eniitled, ( tit cf Avh!< h. ]>iils. to the amount of ,Cl(H),(U)() aie to he issned lo exchanire the said old hills of the same vahie. and the remaining £11(1, ()!)(( is to l)e lent out onsecurities at eiu'ht per cent. interest, five-eigl;Mi> of which interest is to he the fund to pay oft" the old del)t of .Cl.id.dOl) and when the debt is discharged, then the fjorr-'n-ers of the .CI Id. (ill) are to begin, from t'v time, lo p.iy off tlieir princiiKiI nioiiey, one-tenth part ^^'arly. too.'tluM- with the inlci ,~t for ten years, till the wdiole is d, 'diarunl. and tiic 1;!!1-- talven up. The iiiteie-^t money is to he piiid in .-i'\er i r u'lld, at the rates mentioned in the said act. As to the expediency or utility of iiis act. th.it is a matter under your Fiordships' cotisi(lcia1i< n ; wh;it T have to observe is, if it shidl be thm u'll ('xjh 'bent that such an act should |)ass. that this ,ct ^\\\l lie ve!\- de- fective, and liable to lie evadiMJ. It is enacted, "that the trustee^ >h:i ! , y •h,;,.,. CiOtL- 000 ol' new bills for the prest'ut pap( ,• pi ]> tli:;t all the bills of credit of this province may, as soon as conven- iently they can. be brought and nut u[)i)n one and the same foundation." In this clause there is no limited time for exchanging the new bills for the old. nor any direction^ for tlic burn- ing and cancelling the old bills when they ire taken up, i m Jl w OF THE COLONIAL CONSTITUTIONS. 427 whicli is iismil in tlic^e cixstv, ;;nd was particularly pro- vided lo!- in the act parsed in tills province the 20tli of Auiiiist. 17-)1. Inr the eniittin<^ of new Ijills in exchange <'f . secured as aforesaid, shall amount r.nlo Ihc sum of .ClMII.OOU at which time (as it is therein ..lentioned) the Slid debt of £lUt),l)UU will be entirely paid off and (lisclia!'ides ihe interest due on his or tiieir i)onds respect- ively, pay to ihe said trustees one-tenth \K\vi ofthe prin- <•in.il. ;!nd sncli jtayineiits y(nu'ly. an;l every year to be 111. 1 '. -o [jial tlu' wliole princi|ial be fully paid imd dis- eliaraed in the s|)aee o'' t"n years, and the sums, so re- ceived. 01 dixliai^c i)f the , ineipal aloresaid, shall be ainiuallv bnnii by liie t;u-tee<. By these (dauses th're is no i'tue lixed, nor is there any compulsion upon t!u' trustees to aiiply the interest money tlioy shall i-.>'eive lo diseiiar.ij;e the old debt of .tllUMlOO (wliieh i; the fund ior tli.at pin-po-eKand to take up ajid eaneid ihc bill . as they are iil ol]', which should be provided for, uthcrwi..-ii they will have it too IM Hi ! V i ' :| I i! ■: - - ■ m h ! ■ ; r 428 OPINIONS OF E.MINEN'. LAWYERS. iiUK'h in their jjowor to evade the iiiteiitioii of this act, l)v coiitiiuiiiiu- a larucr ciiri-eiicy than even by this art (iiiosely woriied as it is) siH'Uis to he intended. Where- as, if it was -iiaeted tliat tiie trustees should annuall\- pay the five e ^hth< nf (lie iuU-re-^t a-^ they received it, tow.ii-ds p.iyiii';- oil' and i':diitii: in the 1)111;; for the ohl del)t. until the whole of the olil debt is diseliar^a'd, and the !>ilN aie eancelled. r-y to place out the interest an- nually on s;Tiirifie< (for whicii tliis act does not n'wv ]>rop(\' dii'ectioii<) till the accumulated sums make u|) JClOMUiiK ;ii.d then I.- oMiirod to di.^cliari. and t.i'a' the; up and can ■ d thei i, and I'rom th.it tim- tin- !)iirrow< rs of the Cll'i.dUO whlcdi •win he the .)ul\ iiiih rciinlnlii::. t) U'liin to pa\ auuuaU l_\- onc-trntli piiri of tlieii- ddit and interest, till all tiicir hills ;ire p:ud and ciiii cllcd ; \'.\< would, in a coiu'se of years, >nUv ail the hdl-. It is aisi) enacted, •'I'lnl the iuf 're-t muni-N- >hall he l)aid ir .^[Miii-h a- Kurdish silver coin, or in golil, at tho ratc> linifin mciuiiinc(|. " By tlic act of Q-.een .\uuf the rair- ol' furdmi (•,iiii> in tlio eolonl<'s and pliuiiaticii^ ar»' a-ccrtaiued , and thiri province eaiuiot ilier the saiu", hut iiy a \u\\ law made i'or thai purpj.sf. This is desi^^ncd to !,.• n new law, and intdudes En.i,'li.-«h silver coin, Uicrelore it iiuist be saliiiuttod to your Lordships how to advise any new law, sett'ig a rate or value upon siudj coin. f-'a- the reasons I have •K.'ibre given, however it may be ihouirht cNprdicnt and useful to pa.sH an act for the pnr])OM's intended hy this aet, 1 am of dianlon, th^t thi.s net i-. not lit to p;i-s into n hw. M.\T. L.VMB. Laioolu'.i luu, Doc. 14, i74b. OK ThK COLONIAT, CONSTITUTIONS. 120 (-!/.) Mr. Wi.sf'H (M-rratloiLs „:> th, •nnil nuance of the rirniii,' arts of the Jamaica , ' s.s-H„h[ii. T.» 111.' I{inl,t H,m.. the Lonls (',„nn.i. latiii^r to SOI,:,, acts of Jiiniiii.'n, tnniMiiitl.'.l to i„r by Ml'. I'"|'l'l*'- i" liis letter of tl„. I7;li ol' l-\.|„ uarv *- 1-. Si'vcral laws of Jaiimira \v,.|v <-(,!,liiiii..,| l,v Kin- <'linr].- II. in thrynir JOSl. f<.i- tlir trnii nl' twrnty-o,-.'," ycai-; only, (liiriui;- wliich time, vi/, : in l|„. v,,,,- IdSs, u I. N.'Hii.a.'t pass...!, suppos,.,! (o haw l.m perpetual, iiiii newr eoiilint ("d l»y tlic cniun. In 1711.".. a new revenn.' ad pas^ .1. Cr tl..' v, ,,„•,■ .,f "".and la.-nt.N w-a: ., v.-|u>rel,y ail t li.' laws of .lumaicu, r.M-in.Tly eunlirnied I'or twcnt > .-.,ne var^. I.v KintJ Cliailc< th.. Second,, were fiutli.T eonlnuud l.-rthr l..rin "I'thit aei. win.d. vviis for ( w..,,! \ -one year- looi t- cx- ceploe.; u r.'vcnue act, pa.-od in lbs.; ^nid a ^ih-.- M'"'"' :" I 'I. Ih.' \ea- IdSS, uhi.-h aiv r.p. :dr ! I.v the ah.veiueuliMn.Ml lawof I7(i:], h„f the last inenlinn,..! law Ijein;: oidy tenipwrarv, and it h.in.^ e\puv-lv de- ciaivd therein, that the sai.l a.l, and nil mid every diuise or cdanves therein eojitaine.l, sjiall he and renuiin hif..ree for Mm- -pari- o| twenty-one years fmni the l.st efOctoher, M^v) : tpi ny. Wh.ih, i t hr lu.. revenue nct« of 11183, and 1G88, therehy intc nded to ho repeiiled, nre/dHoliiteIyrep,.al..d,,r(.tdy.HUf.pended,dnriiiu the time preserihed for the eontiuuanee of the net in ITtKj \ I have ulw considered th.' Ivv.. am cxed cluudea i H I 130 OPINION'S OF EMINRNT LAWYERS. of the a1)ii\ t"-iin'iitioiuMl reveiuie net of 1703. Evi>r\- net whal-^ocviT. that pas.^io.'^ into law, is in \t- solf porpt'tuul. iniU'>- thon' are words, in tlif hody of it. to (It'tcrniine it.< duration. And in rii tn the rcviMUU: art of i7>l->. I niii-t lici:- leave to oli^crve. that the clan.se lor its (hn'ati.«n is alto- tretlier in the athrinative. -'that it sliall he. i.nd i(Mnaiii in foree. for the si)ace of tuenty-oni" years :" hut. then, as tiiere are no !U'i:ative words, l»y wliieh it is enartcd that -it sli 11 continue so loiijr, and w> hmuer, ' it nia\ he nia(h' a (|ne-ti()n in law, whetlier that act of iTOijis not, ■ I itsell', peipetiial Tile reveini*^ in .l.iniiica has heeii ])i(i\ide(l fi;r hy two several , tit-, one in idSS.and the otier in I7il-).(fnr, as to that in liiS/., there is no dout)t rot lliat i- not in foi-ec.) and till' act of jiiSS is said, in the etnai law, and . nn- se^iuenth, v, oidd lie still in force. wa> it not lo,- the re- pealing cloi-e in llu' act of l7<>-i Ihil :i< I -n|i|i..M' it is indillerent to f lie i;Mveriunenl. whether thcrc\cnuc i- s<.*ttl«'d cil luT li\ oih' or the other of Ihe-e .ict-;. -o | thini-; it i- in '-t certain, that one ol the tw^ nuist h(> still ill force, for. if the act of I7t'"> lie c( ir-tnied to he not now ill fore*', hut to he teniporar\, then the act of Kiss must revive, in reason that the opei ation oi' the act ol" 17(I3 cease.s and determines; hut if the act of 1(')SS he supposed to lie al)^(tlutely repealed, it enii only he hv roasontliat there aic not any negative Word.s, aiul no longer, (as is u-uai in all the tenip«)niry uet-i pa>t!e(l in Kii^land,) to determine it.s duration ; and, fonso- quently.the net of 17<>3. and the provision lor tht vc- uue therehy enaeted, must he still in lull force. Uii M. West. March li, 17:: 1-22. I r SI OF THE COLONIAL CONSTITUTIONS. 431 (29.) Th' oh-srvratlons of tk, Attovuey ami Solicitor^ ('< wral. R,,.l,r and Mnrnuj. on the arts of the Jamaica . [■• tradn.- to "nd.nten.,e,i,n, thatislan.l; au.i thev ha vin:, ex,M-esJ ;"' '' "■■"^'•^^•" tl'.'t thevha.l not an npp.Mtunilv of be- '" l'»''id !.eln,v us upon Ih.-se aets, uhen ihev were un- 'I-'- •""• .-nsideration y.-.-r Lonl>hip< had directed 'iK'mtobetrausn.itted haek to us lu,- „ur mr.hem.n- -dorat.on; and that we should, ,- ,eport thereon ^t;it-tov,,ur l,on|>hipsthepu-tieK'...r ohjeetions -hioh w<'^a\ ,M our loru.er report we have to each ..f fho.se ''^^-■'""' '" •"^"•'•'- '".d sulw,;„HV t.the end that if "'^'>^^' "I '"'laid before ll.s.VI,,,.,,,- for ln< dis.ppro- l'i"t>'«K a- having been passed witlu.ut ejau^.-s of su.s- lH-ns,on, contrary to the twenty-second ..f H .Maicty'H mstrncti»ns,\our Lordships n.av be enab! : to pnint out the rmrticular objections |n th.. (* ...r an.l di- rect him to ^ret M.ch parts of thuu .-uall be for His .Maie,sty-H Ker^ i.v and (be pubbc util.tv and advantage "f the islaml re-enar,ed with proper c;,.,.,es of ..u.pen- ^"•n. Also tran>niift,ng,b;v,Hu-Lonlships' direction, tl'o two luUuwing uct.^ pa>,.cd in ihe xud i.land ,n N.. IN f 'I H; ; i t V i- 432 OPINIONS OF EMINENT LAWYERS. vember and l)c'<'('iiil)or, JToI, the latter ol" which had ffbcn pomplaiiK'd ol' hy Mr. Forbes, the prevost marshal, as invadinix the ri^Iits of his oflice, and do.'^irinji' om- opininii lheML'ui)()n. viz : '-an act for niakiuj;' n-ood and wlioicsoino ppDvisioii, lor raising and o.sta)>lishing the creiHt of thi.< island, and repealing of an act, entitled a suppiciiu'iital mid explanatory act ;" -an act ior the fm-ther r ,idatioii of the provost-inurshal's pruceedirgs, estalilishing pi-icrit V of judgments, quieting possession of slaves, pwrtdia.sed upon i'cnt- ol'tiu' same assembly, menlifvned ill Mr ['nwiiafs letter, on which }'our liOid-hips are pleased to de-ire our i>pinion, ami have In-eii at tended by John Sharpe Ksij., us for the waid island. u|M)n tiin>e act.-*. We dill, ill iMir I'lHiner report of tlie li'Jd of .innuiirv liVfst, eonfiiie (mr>> 1\('> t. une general reastm Uiv ilisap- provlug the lii>t Iniir acts, arising from their Ijeing passed without a clause of suspension, in breaeli of liie twenty-.secoml arti(de of the (Jovernor s iir-truetlmi- ; .n tile uliedieiiec tl.jcction.s iu oaeii, .siiiiicieut in our upinioii to u-w^-nt His Majesty ".s appn.hation. As t.) the iir.st^ cn<^ m.^.'^eriitf," it di- reetly afl'eets the royal i»rero<.-ative in a point of great moment. a.,d for whieh no .j.Hiision is pretended to he -•iveu. In- the ahuse of aux pc.wer eonnniftcd to the (invernor ; or. if tlieiv had iircu any. it woidd he nuich more suitahle to His Majesl/^ honor and diu-iniy to re- form it hy his own auth.iiilv. fully suiiieient Im- tiiat purpose, in sueji manner as to his royal wisdom slicuhl sceiumeet.th Ml hy th<' imposition of an act of assemhh ; n.ir docs it a])i.ear to us. that in the situation and ci'r- cnii^taiices in which thi< l-land ^rtue othei' .Viuerican I'laulatioiis >land. it \vc,, ,! hca.Kisahle. cither for the nitere-^t of tlic plantation rhemsolves. or oi' ( ireat Brit- aiuthat thej'udjros in lli.- rmcishould hold their place.s ijiitiiiii/ih .vc hene (je*t-ftrhit As to the second act, entitled -an act for choo-ino' the meiuln-rs of the assend.iy of tlii-< i>land l.\ l,al- Int. and f»r the more eHectiial prexiitini;- ahu-cs and iiidirccl piactico.s in electi(ms :" «.s tiie pre cut method of election liii.s heen estahlish.-d |,y virtue ot liis Maje.>^- ty';* iu. :iud loni; usajie, asreeaMc, in ^■cueral, to tli<' practise here, and in all the oihor plaulat ions ex- cept one, imd nothinj^ lias happened iu this to ' ihe inconvenience of it, \vc thinU it very dan^jerous a\u\ im- prudent to make MO ureal an innovation as is intended hy tiiis act. .\- to the thii-d ad. (Mititied -an aci lor e\plaininii iiii act ;or the lintlier (piictini: posnessions, and reirula- tinj< resiirveys. and for estuhlishiin.'- icnutcd houudarie-^ 66 m ■X !" iU OPINIONS OF EMINENT LAVVVERS. li ih I we tliiiik it liy no means advisable to onlinii a law which has a rotrospect lor twenty years, iVoin the year 1731, (when tlie I'ornier recited act was made.) in pouits Avhich do noi appear to have lieeii within either the words or meaning of that act, and without exce|)ti!>j; casf^s that in;iy have been adjudiied, or where the i)ar- ties have enjoyed otherwise, and whose (piiet and leji,al possessions may be disturbed by an act [)assed nnder the color of (jiiietin<; possessions. As to the t'ourth act, entitled •an act |i>r appointing commissioners n[' ///'■ ol debt;" this is soexten^ive a change in the con-t itntioii ol' ihe government, with res[)ect to the administration of jus- tice, and >o great nn eucroatduacnt upon tiic ro\ai pre- rogati\e. to which the i-ret'ting and c-tabli-hing t-oiirts of justice belong.-, that we I'annot think it advi-alile to admit of such a preeedent. noi do we think that the va- riation proposed in thi'act would bi' licue'liiial to Ili> Majesty s subjects, ifcairicd into e\t-ciil inn. As to the liftii act, ( ntitlcd an act lor making good and wholesome provision for raising and e-tabli'>hiiii: tile credit of this i-hiiul. and re[iealing of an act. entitled a sup])li'mental and explanatory act :' the part relating to the inci'ea-e of co-t.- -cems to ns unneic-->;u\ and dangeroii-. the praetiee, .dr-cady, ofgi\ing cost-, iiiclud- iug counsrl- fees, and .ill otiier exprn<- ''• take auay part of their right, where the eon- •rartwasiora higher rate. In I.oth ...ses th. law is unjust, and we think it not proper to he approved Ah to the .sixth aet, entitled^ an aet tor the further 'H^SMlatiun ,.r the prov<.st-n.arshars proceedings, estah- li^lnng priority of ,jndi,n.ents, ,,nieting possessions of slaves I>-'.Thas,.d upon .,.././...., and n.rlindtationnp- "" '"""'^- •"••'•l^'^M''^ i-nlnient- muI ..ther seenrities and ^'"U-uvring the assistant.,,. - to si^n Mri,. and nther process :' tin- elau.se tiiat estai.lishes certain ivos with 7'^'*"'" '■"•'"" ^^-^'^ ''''^'" '-on paid already h'evond tiK'iji has an ii,,j,,st retrospect. ''''"' l"oliil.itinu- writs of c.vecntiun to i..,„, ,iii ^he 'H'McnurtdaN alter judguH-nt, is an unn, ces-arv and .langerous del.v nt, jnstice. and n.ay give great opportu- H'ti.-ol liaud, cu.val.nenfs, and cn.l.ez.zlenients The ciauM. relating to, Hvsnmed satisfaction of n.nrt- frages,.v,. ,,.„n < -.■nty year. ac,,uie...ence. &c. i. u ith- ""^■"'•^ I'MHiatn.n, ur eNceplinn. arising from tJ>e cir- cmn.stances of age. place, or .vacitx. of either creditor <"• •'^'''•"'•- ^"-d i,as a v,.ry u,,|n>t retrospect; an^--'hil>it ilr' iniportiitii»i. of t'o/iri'fx. To tlic Ui^lil UoiKuaMc the Tjorrls ('oimuissionors of Triid" and I'laiitatioii-^. Mv Ijonls ; 1.11 ohcdicnco to your Lordships' coinniands, I have peiaisiMl and eonsiderod an ad p;isst'd in thi- proviufo of VifsJiinia, cntitliMl '•■ an art \'nr auuMidint;- the act coneeni- iiiij; sei'vant ol" convii'js and 4; IVC; nd for the better <;(i\ ernnieiit iniported. and tia- tlie further preventing the clandestine Iran-^pni'laiinn ofpersons out ttt'this eoh)ny." Ti^ ^ueh part of thi-; act a< rehites to the .ujovernment of their servants and daves. 1 have no ol)jection ; hut, then, 1 nuist submit the other part. \vhi(di rehites to convict'; tran-^portcd from Great Britain, to }our Jiord- -^hips' eonsi(U'ration. l?v act of parliament. Pi^rson.s com k aui 1 oti u-r < rune are ted of felonies lialiie to \tr tiansportt'd to the LUiericau colonic tlu're ti 1 lie (tl.^pn>i d of to the plan- ters, for several tenu< of u u-. This act of as>ei ihly. tluM'cfore, recites, that liaiid; have lieeu coinmittcd hy till' [ler-oiis eiitru-tcd with the transportation of felons. v<:c. ami that mam ci iine> had liecu conuiiittcd in that colonx' liv the traiit. tiiat no person importinu- fel- on-. \'c. into that ]iro\ iiice, shall dispose of any convict tor a loss toriu of years, or time, than what such comict a- tin- act- in«i otherwise than what i.s here pro\ iUed for, is aii nbufic of tlic lawhere. as well ns of thr planters there. I think this clause is very proper, and ttiat the penalty often pounds upon ofl'enderK is very reasonable. .Vftor was oriiiinally ordered to be transported \\ OP THE COLONIAL CONSTITUTIONS. 437 this thev enact, that if any convict i)oi-,s()n he permitted to go on shore at hirgc unless lie l)e actually sold or dis- posed of(.) some master, that, then, the master of the ship, wherein such convicts are imported, shall forfeit twenty shillinj,^-^, whenever any convict person shall be appiehended on shore. If the mischief they would rem- edy by this clause, be, that the importers of ccmvicts permitted tliem to go at large, witliout over disposing of tliem lo proper masters, the penalty sreins to be much too small to answer that end. Alter this they enact, that .nery master of a vessel who imports any convicts, sliaH -ive bund, upon condi- tion that he shall not suffer any convict to go on shore in the province, till he be actually, and huna fide, sold and disposed of To this clause it has been objected on bchalfofthe persons who contract witii the Lords of the treasury for the transportation of U-lons, that if it sub- sists they cannot execute their ( ontracts, since it obli- ,;;es ihcm to keep to their ships 'ring there, until they h;ive dispo.sfd of all their convicis on l)oard, when, as tiiey cannot a/ford lo keep their ships there .so long, \Nithout taking in a loading homewiird^ I am not mer- chant enough to know what force tlie.v is in this objec- tion ; but. according to my apprehension, the same ei-d might be obtained by obliging the persons on shore, to wli..m the convicts should be consioned, and not the masiers of ships, to give security, not to permit the con- victs t,, ^r,, j,t large )r t)iit of ciistoil\ iii the province, until they should be, as above, aduiilly and bona fi^ie dispo.^eil of; since, l>y that mean-, tlic country would be as elfectually secured against an\ mischiel the con- victs might do. In the two following clauses it is enacted that every 4i' ■A > \ : H I ■I.- I' i'l V s i ill m & K 438 OPINIONS OP EMINENT LAWVERS. person, who, upcni importation, lias the disposal of any convicts, shall, l)et()re he be permitted to dispose of them give security in the penalty of iiliH), for the f^ood be- havior of such convicts during the space of two months after they shall be disposed of to any master ; and that every person who shall purchase any of the said con- victs, shall immediately give secmity, in the penalty of ten pounds, for the good behavior of such convicts, dur- ing the whole time for which they are respectively transported. To these clauses the objection is, that they amount to a prohibition of any convicts being imported into that province, since the contractors for transportation have represented to me that they cannot get any masters of vessels who will give the above mentioned security, nor can it be expected that any persons will purchase any of the said convicts ujwn those terms. The transportation of felons, &c. is by act of pai-lia- ment ; and, if the example set by this province should be followed by the other colonies, the execution of the laws concerning transportation will be rendered wholly impracticable. And, therefore, upon the whole matter, if your Lord- ships shall think that the above mentioned clauses will amount to a prohibition, I am then of opinion that this act is not proper to be passed into law ; but if, on the contrary, you shall be of oi)inion that they imjiort no more than a reasonable .security to the inhabitants ol" that province against any mischiefs or crimes that may beconnnittvd by the convicts, I have then no objection to the act, Rich. VVest. July 3, 1723. OF THE COLONIAL CONSTITUTIONS. 439 (31.) 7 he oUermitioas of the mine lawyer, on. an act of tilt mme Assemhly, temUny to prevent free bkich men from voting at elections. To the Right Hon. the Lords Commissioners of Trade and Phintations. My Lords ; In obedience to your Lordships' connnands, I have perused and considered the several following acts, passed m the province of Virginia, in 1723. And as to the act entitled "an act. appointing a trea.s- urer, and empowering him to receive the monies in the hands of the late treasurer," I have no objection to it, in point of law. only I would (observe to your Lordships^ that it seems to be now a practise, in all the vVmerican' colonies, for their respective general assemblies to as- .^ume to themselves the nomination of all otiicers rela- ting to the revenue. As to the act. entitled 'an act, directing the trial of slaves committing capital crimes, and for the more ef- fectual punishing conspiracies, and insurrections of them, and for the better government of negroes, luulattoes. and Indians, bound or free," there is in it a short paragraph by which it is enacted that from and after the passing the act, no free negro, mulatto, or Indian, what.soever. sball have any vote at the election of burge.s.ses, or anv iither electitm what.soever. Although i airree that slaves are to be treated in such a manner as the proprietors of them (having a re- gard to their mnnber) may think necessary for their .se- curity, yot 1 cannot .see why one freeman should be used wor.se than another, merely upon account of his com- plexion. 1 have no objection to the putting such limits » . m .A I'll t if i -A UP ! i ^.. -i IMAGE EVALUATION TEST TARGET (MT3) / o {/ % %? V #- «^ A 1.0 l.i 1.25 ?12 12.0 1.4 12.5 22 1.6 P^i m ^%^ 'W /a ^ &^ / '^' ^ /^ ^;;^ Photc)grci[)hic Sciences Corponition ]3 WtST MAIN STRUT WIBSTfR N Y 1*^»0 ersons of n l/lack complexion, (some of whom may, perhaps, be of considerable sub- stance.) from those lights which are so justly valuable to every freeman. lint I submit the consideration of this to your Lordsiii[)s. As to the sewral other following acts, passed in the same province in the said year, 171^3, entitled 'an act for the settling and better regulation of tiie militia;' "an act for the better .securing the paymentof levies, and restraint of vagra it and idle people, and for the more effectual discoviTv and pro,secution of persons having bastard children ; 'an a(>t for enlarging the juri.sdic- tion of the coiui oriln-^tiiigs. in the city of Williams- burgh, within tlie limits thereof;' •' an act for raising n public levy ;' • ,ui act for reviving an act. entitUvl an act lor .security and (Icrcncc of the country in times of dan- ger ;"' ''an act tor dissolving the parish of WilniiiiKton in tiie counties of James City and Charles (Mty, ami adding the same to the other parishes ; " and "an ai'i for dividing Saint Stephen s parish, in the county of King and Queen ' to all which, I have :.o objection to their b<'ing pa-s.'ed into l;iw Jan. 16, 1723. Rkh Wkst. im Oir THE COLONIAL CONSTITUTIONS. 441 (32.) The sum, lawyer^, ,j-^^,^ ^^ ^^^ ^ My Lords ; peruj'!"!,""'' 'Z """■- ''""'"''■>"' »"""»"*. 1 h„ve perused and considered tho fnnr r^n • •ho emitting and nJl, ' ''"^'' "»" '«^' «>■■ «■'« in execution an !I^^ tt el v'Ttf''"'''"' ^'''- entitledanactforemi.tin '™°'-^ ■>'«"» province, ' tied an act fllif ''"^^ ''■"«""'-.V «=' to the act cnti- '.ill» of dtt ."a ? "'■ ?"'"« «"^-"' *'5.0'«i in i" other c^er tLr ;■ " """' '""'''"'"'"' '""■<• '-"^Iv, '..at .ind:nL:r:,: '?::;;:-::':" .">;--f law. ' *> ""^ ^ ^♦'^ P«i«'^fd into ".--ir;::srrt:^:'-'-- ...- ™mm„„,ag„i„,t f,«l>oider-.- * "'" P™^'™ The intent of this ft(«f I- «,. .... ^ „ , •'-«.ne,,fr,a,aor:",;;:;;d' ;!,:ir.t;.'''f::''" •May cmtract dcl,t» l„ „ | ,lr,.,l . ' '"^ -o, and ,,avcc„„.dc™i;;:',;^;r :;,,;:::!;;;; tiu'v may run awiiv r n.;«i . • wnn n ileLre nn/ . ' ' ^ '* " "" "•"•*^^'^'«'nHh!e priv- •K'. and not proper to I., p,,,,., i,,^,, ,,,^^. » "^ 1 have hkewLse perused and eon.sidere,l the three Ibl Iowa., aet.s,^p.U,.HK. said i.,and.entUledC It r J m if 442 OPtNIONS OP EMINENT LAWYERS. for respiting executions upon certain judgments of courts in this province ;'' an act to rectify proceedings upon attachments;" "an act for regulatirg and establishing fees :'' to all which, I have no objection to their being passed into law. Rich. V\''est. May 10, 1725. (33.) The observations of the same lawyer, on tlie peouliarities, ami unfitness, ofotlier acts of the same As- senMy. To the Right Honorable the Lords Commissioners of Trade and Plantations. My Lords ; In obedience to your Lordships' commands, I have perused the several acts of the province of Pennsylva- nia, transmitted to me by Mr. Secretary Popple ; and as to those acts, which are contjiined in the bundle, enti- tled "acts pas-sed between the 14th of Octt>ber, annoqrie ilomini, 1712, and the 27th of March, annoque doMini, 1713, I have no objection unto any of them l)eiiig puNS- ed into laws, ' only 1 must bog leave to observe unto your Lordships, that in the act entitled "an act for es- tablishing orphans court," there is a clause, by which the justices of the orphans court are empowered to e.\ercise all the authorities and jurisdictions granted unto them by another law of the province, entitled "an act for the better settling intestate e.states ;" and also in the act en- titled "an act lor mending divers laws therein mention- ed," there is a clause, by which it is enacte is also unotlier act, entitled 'an act for the ''iisf oi'.such as con.-icientionsly .Mcrupie to take the .soK-mn nllirmation f«.rnu'rly allowed in (.Jreat Britain." As no i 444 OPINIONS OF EMINENT LAWYERS. man is a greater friend to liberty of conscience than myself, as to my own particular, I have no objection to this act being passed into a law ; yet I think it my du- ty to observe to your Lordsiiips, that, as the affirmation to be allowed by this act is materially diflferent from that practised in Great Britain, (the name of Almighty God being not mentioned therein,) your Lordships may possibly think it proper particularly to conBider how far the circumstances of this province may render it neces- sary to extend the toleration to Quakers, further than by the laws of Great Britain has yet been done. There is also another act, entitled "an ac't for laying a duty on wine, rum, brandy , and spirits, cider, and hops, imported into this province ;" and there is also another act, entitled "an act for laying a duty upon ne- groes imported into this province :" I submit it to jour Lordships' consideration, how far it m!»y be proper for the inhaLitants of Penasylvania to lay duties upon the above-mentioned commodities : t(j which consideration may be added, that in the act relatmg to negroes, there is a power given to the officer.-^ to break open hou^^es, up- on suspicion of negroes being there, generally, without any limitation or restriction for the exercise of it, which power extends to nights a A^ell as days, a power which is rarely admitted by the laws of Great Britain in offen- ces of an inferior nature. As to the other acts contiiined in the above-mentioned bundles, I have no objection to them. Rich. West. March 6, 1718-lS. »— OF THE COLONfAL CONSTITUTIONS. 445 (34.) 2 he olmrvathm nf the SoUcitoi'-G., aval, T ham- son, on a/i act of fh^ New Jersey Assembly, fur ascer- taining th^ seat of government. Sir. In obedience to the commands of the Lord.s Commis- .sioners for Trade and Plantations, .signified ).y yours of the 5th instant, I have considered the act to repeal a former actof general assembly of this province, entitled "an act for the ascertaining the place of the sitting of the representatives to meet in general assembly." And as the act to be repealed was made so latelv as the eighth } ear of Queen Anne and is found to be" inconvenient and a.sserted to be contrary to (lie royal instructions, I do not apprehend that there can be any scruple, why His Majesty should not approve of this act sent over, which leaves the place of the meeting of the assembly to be appointed as shall be found most convenient ; and the rather, for that the act to be repealed was 1 re- straint of the King's prerogative. T^ I r. 1-,.. WiM,. Tho.mson. December 9, 1717. (35.) ^f,■ Wesfs r( marl's on an art of the Honr: As- semhly, ten, ling to lessen the jurisdiction' nf the .supreme courts of justice. T.J the Right Hon., the Lords Commissioners of Trade and Plantations. My Lords; In obedience to your Lordships' coi.nuands, .signified to me by Mr. Secretary Popph', I have ,)eru,se.l and considered of three acts, passed in thr province of New Jersey, in AiiuMirn. entitled, is li.llows, vi/, : 'an not for shortening of law-suits, and regulating tlie practi.'e of the law ;" 'um net, enforcing the observation of the or- 1 1 '■-.■* 1 J t ii M 1 ..--■t ,'f f ' 446 OPINIONS OF EMINENT LAWYERS. If •a w dinance for establishing fees within this province ;" "an act for acknowledging and recording of deeds and con- veyances of land within each respective county of this province." As to the general purview of which acts I have no objection ; but inasmuch as those acts are represented by the Governor and by the judges of the supreme courts of justice in chat province, to be entirely destructive of their jurisdiction, and, as in their opinion, not tit to be pa.ssed into law. especially considering that they are in- tended to be perpetual, and have also been represented unto me that those acts are very prejudicial to the right of those officers who are appointed by patents from the Crown, by les.sening their usual and accustomed fees in such a manner as that there is not a sufficient encuurage- ment for any person to undertake the execution of those offices; I am therefore of opinion, that those acts are not proper to be passed, unless there be clauses inserted into them to save the jurisdiction of the superior courts, and the rights of those few officers in the province, who are appointed by patent from the Crown. Rich West. December 11, 1718. (36.) Therrpurt of Ihe Atiornei/ and SoUcit(/r-Geiie- ral, Ry 2d. If the bonds and cunditions are in force, notwith- standing the rejecting the acts, whether they are satis- fied by the commissioners having accounted to the as- sembly 1 452 OPINIONS OK EMINEM LAWYEKS. yd. What .shall become of the money, raised by the aets, in tlie commissioners' hands, the appropriation and uses being Jeterniined ]>y the rejecting tlie acta ; and h«)w may the commissioners dispf)se of the money, and be discharged of their bonds, if in force 7 4th. \\'hether the (Governor may not direct the com- missioners to pay the several sums or l)alances into the treasury, generally, for the use of the government, free from the appropriation of tht' acts or penalty of the bonds, and thereupon order the IjoimIs to be vacated ] oth Whftt method must l)e tjiken to oblige the com- missioners (upon refu.sal) to pay and account for the money as afoiesaid ; or what otherwise may be d(me for the service and support of the government under these circumstances 7 My Lords ; QH(fTe{i.) In obedicMice t<) your Lordships" commands T have considered the alxjve-written ifiim-i/^*/] and, in answer to the first of them, I am of opinicm that the bonds are n >t in themselves void, inasmuch as 7io/} cH fartuvi, which is tlu' g« iieral is.sne in all actions u[)ou bonds, (iintiot be pleaded by tho obliger ; liut thev arc voidable as to such part of the rondilion of them, bv which they are obliged to appl\ tlir monies King in tb< ir hands, to u.ses dire<'ted by an act of a.'^.seiublv lliat is not III force, and, fberel'ore, the inonev cannot be ■iii- ]>lied accordingly ('J.) .\s to tile .second, I (liink that the conditions an- satisfied by the connnissjoners i.coiuiting to the as- sembly. (3.) A.s (o the tbini, 1 .-in, .>r ..pinion, lli.it the nionev, nesting in the comniis>i neis Iiands, is lo iu- i-onsidercd n«p\iblio money, and (like the surplus, ntuipproprnitect. OF THB COLONIAL CONSTITUTIONS. 458 of a f.incl in England) is subject to the furture disposi- tion of the general assemblj-, (1 ) As Ui the fourth, I am likewise of opinion, that since the act by which the commissioners were appoint- ed is repealed, that the Governor may dil-ect the com- missioners to pay all such sums of money as thev might have received hy virtue of the said act^^jefore'it was known that the royal assent was refused, into the pub- lic treasury ; but here 1 would beg leave to observe to your Loi-dships, that if the act herewith returned io your Lordsliips' board, entitled "an act to oblige the sev- eral inhabitants of this island, &c." be confirmed, then this power of the Goverhor would be eluded ; since, though the monies would be in the hands of the re- ceiver-f^eneral, yet it would be in his capacity of com- missioner, and not as receiver. But if it in not confirm- ed, the Governor may order the bonds to l»e cancelled, since the obligers have done all that they possibly could towards towards the peformance of the condition of them. (o.) As U) the lastyw^m I am of (^pinion, that the (•(mm ihsitmers U'ing apjwintetl by act** which are now to l>e (HMisidered iis none, and it being certuin that this is public money, which, by law, is to be lod«red in the public treasury, and not \n private hands, therefort tlic commissioners »re in the case of any conunoi, persons into whose bands public monies may chance to come without any particular right t<. receive the same, ami iii.iy l)c proswuted and sued in the common method of their cxche(|ucr, v'.-c. for the ivcovt-ry of the m(mev in their bands. Ki( H Wkst. .luiv H. 17 hr 454 OPINIONS OF EMINENT LAWYERS, It (38.) The report of t/ir same lawyer on the Jamaica act of A-s.'^emhiy, for rolonizinij the inland To the Ili case they should be deficient, and applyinjr the same to .several uses.'" As to the gen- eral purview of which act, I have no objection to its be- iu^'pas.sed into law ; but 1 must oe^r leave to observe to your liordships, that by a clau.se ccmtaijied therein, it is enacted -'That all ves.sds trading in or about the island, which shall have blacks on boartl above the number of (me-fourth part of the hands employed in the manage- ment <.f such vessels, shall be forfeited, with all its tack- le. I sulMuit it to vour Lordships to determine wheth- er thes(> words are not too general, and whether thev should ii.it have bct-n restrained to such ves.sels as are actually oAMcd by ilu' inhabitants of the islan.i .> I have bcrn but very little (-(.uvor.srtnt in matters of trade, but I have Ik-cm informed that in tlu' Ka.>t India trade! the cornmanders of ships, bv rea.s<.n ..f a n.ortalitv auK.ni: tli,.,r .siilors, are fmpi.-ntly oblig,.,| .„ ,„„n their ships with Indians, bh„ks, or such other uumi as they can get, tu assist them in their v.yage homeward- Wbetle-r >u(li accidents may not «l,s,, happen in the West India tr.ule. espniully . nln-ard such ships as trade frrw the c,>a.st of (Juinea, and trans(H)rl blacks into that island, as may necessitate them to employ more blm-ks Oh THE COLONIAL CONSTITUTIONS. than a fourth part of the number of their crow, I cannot say; however, m your Lordships are the proper judges whetlier the inhahit^mts ol tliat island are of a disposi- tion to take any advantage of this nature, i thought it proper to observe this paiticuhir, which, if not pertinent, I hope will be excused, that your Lordships may con- sider how far this clause may be proper to be i)assed. There is also a clause In this act, by which the es- tates of all persons, not resident in the ishiiM, are higher taxed than those of persons who dwell upon the spot. I submit it to your Lordships how lar this may be prejudicial to persons residing in Great Britain, and in- consistent with that e.piality which ought, to be' observ- ed in the levying of public taxes. I beg leave further to observe to your Lordships, that the general assembly, retlecting upon the reasons for which their other act.- were repealed, have, i.ideed, so far complied with his .Majesty's instructions as to make the monies to be collected by virtue of this act, payable nito the h.aids of tin- person who is to '>e receiver-gene- ral of the island ; but then with a view, doubtless, to continue their claim of nominating conunissioners for t)ie receipt of public .aoney, ttiey do not make the money payable to him in tiie capacity of receiver-gene- ral. I.iit as your Lordship.s will observe, they appoint the person who is employed by the King as "his receiver- general, to l)e their ctmimissionei . for the receipt of this money: and coij,sc(juM.,lly, n,,t co,i(e„t with that obli- gati..n which every receiver-general is, ,.,■ nffi io, under, faitlifi.lly to account for the public money, they enact "that he shall givo an additional security for his lidelity, by ehteiiii;; info bond, a,„i tiikinga fresl .at b for the laithfnl discharge ol a distinct ollice, which they if" k ' (rH, * IN I 466 OPINIONS OK EMINKNT LAWYERS. judge proper to bestow upon him." Your Lordships will permit mo further to observe, that the assembly, anticipating any resolutions which' may be thought proper to be taken upon those quarie-s, which your Lordships have been pleased to send to mj concerning the monies coJlect-d by virtue oi'the repeal- ed acts, have inserted into this act a clause to direct theimyments oftlie monies remaing in the hands of tlie former commissioners, unto the present conuiilssionor, the receiver-general, who is i,, aceotmt for that money in the same manner as he is for what he shall receive in consequence of this act. I have also perused an act for the encouragement of voluntary parties, to suppress rebellious and run-away negroas, and observing only that the parish of Westmor- land is excepted, I know not for what reason, from any benefits to be derived from thnt act, I have no objection to this being passed into a law. July 8, i7l9. ( 39. ) y he apiu ion of (he A ttorney and SolU^Uor-Ceu- eml, Murray and Lhijd , on four oHh of the Jamnua A.^Mend,I,f, u'hirit, after hrariny jHirtie^' they d,.m(d of ^uch a Mjtun, m the Governor i,nght not, accordUoj 'to h*>* histructiotu*, to have paaiK-if. To the Right Ih.m.rable the Lords ConunissionerH of Trade and Plantations. .May it please yom- Lordships; In pursuance of your Lordships' commands, signiiied to us by .Mr. Pownall, in his lett«'r of the :5(lth of Octo- ber lust, transmitting to us four acts lately pas.-cd in flic island Jaiuaica; togcfhcr with an acMre'ss of the coun- cil and assembly to his Majesty thereupon, ivfent'd to OK THE COLO.NIAL CONSTITUTIONS. 467 your Lordships by order of the Lords of the committee of council for plantation affairs, the 10th of September last ; and likewise extracts of all such parts of his Maj- esty's commission and instructions to his Governor of Jamaica, as relate to passing of laws, all which papers are herewith reti-rnea : and as those acts appeared to your Lordships to be of frvt^t importance, and might greaily affect the welfare and interest of that island, and tl>e rights and properties of his Majesty's subjects residing there, desiring our opinion upon them, in point of law, as soon as might be, tht> titles of which'acts areas follows, viz : 'an act for removing the several laws, records, books, papers, and writings, belonging to the several offices of secretary of this island, clerk of the siipri nie court of judicature, clerk of the crovoi. clerk of the parents and register in chancery, and provost-mar- shal, from the town of St. Jago de la Vega, to the town of Kingston ; and to oblige the several officers to liold and keep (heir respective offices, with the respective rcc- -rds and papers, in the said town ofKing^i.m ; and also Inr holding tho supreme court of judicature in the said town of Kingston for the futinv f "an act to appoint <'omini..sioners to erect and build a house and offir-es in tin- town of Kingston, for the residence of the Governor "t'lliis island, and to empower the justices and vestrv U> assess and levy a iav upon the proprietoi s of hou.^^es and lands, iuliabitaiits and traders in the said town ;•' "an .•Id, appointing (ommissioners to iurpiire into, and Mr.tQ what losM.s -,me ..f the fieehohlors of messuages and '''"•' "''^ '" '•'<• tow.M.rSf. Jago de la Vegn, ami the l.-see. ofsurh rreehohl.M-., may nu^taiu in the value of llieirsii.l nveholds,,,- l.M.ed premisev, bv the removal ol'lli.' siipivmeeomt ..I judicnti.Te, and "of the public 4W 458 OPINIONS OF EMINENT LAWYERS. records, from the said town to the town of Kingston ;'. "tin act to enlarge the jurisdiction of the several inferior courts of common pleas :' we have taken the said four acts into consideration, and have l>een attended bv coun- sel for inhabitants, who desired to be heard in opposition to the said acts ; and also by Mr. Sharpo, as agent for the said I.^Jond, and counsel in suj^jwrt thereof, and we are of opinion that they are of such a nature, as the Governor, by his instructions, ought not to have assented *o, in the manner in which they are passed. W. MURRAV. Dec.2T, 17o.>. R,chd. Lloyd (4(1 ) Y'Ac opinion of the Attorney and SoUcHor-treH- ercd. Httiky and Yarke, that circuit courts in Jamaica conhl not he eMahlished, in the propomi niode, hut hy the legidature of the i«/(/nd, or hi/ an act of parliarw nt. Case. — By laws heretofore pas.'^ed in the island t)f ,Ta- niiiica, and (•onHrmed hy the Crown (a reference to which laws is iiereunto unuoxed), the nuisters ol' ail ships and vessels are obliged, before they can tiv.de or land any goods, to wait upon the Governor, and give .^sels takinj,^ in cargoes at the out-ports, be- ing obliged to come to Kingston to cleav out with the proper officers. It is apprehended that the opening ports of entry and clearance of t.hips in different parts of the island, and di- recting the receiver-general, secretory, naval officef, and collector of the customs, to keep offices therein, will reniedy these inconveniences and grievances com^ plained of. (^U(en:~Whnt will be tho legal and proper method of carrying such measure into execution, consistent with the above-mentioned laws of the island, and the acts of parliament passed for regulating the plantation trade, particularly those of the ir)th and 2r)th of Charles II. chap. 7, and 7th and 8th of William III. chap. 22 7 Upon the consideration of the several Itiws above-men- tioned and referred to, we are nf opinion, that his Maj- esty may open ports of entry and clearance of ships, in such dilTcrent parts of thc.> island as he thinks proper, and may direct the proper officers to attend for the busi- n(>ss of such ports, and to take security there, which, we conceive, will remove the incmveniences and griev- ances com[)lained of Caw.—Uy laws heretofore passed in the island of .Ta- niaica. and confirmed by the Crown (a reference to which laws is hereun.o annexed.) the suprei;., court of .jii.licature. and most of the offices of record, are direct- ••|1 t" I'c hi'M and kept at the town of St. Jago de la \ (>ga. It is represented by the m-rchants, aisd otliers, trad- ing to and residing in the island of Jamaica, tl'.at thr trade ami commerce of that island is greatly obstructed. 4b0 OPINIONS OF EMINEi^T LAWYERS. il If- and merchants and masters of ships exposed to great risk and expense, from being obliged, by the above- mentioned laws, to attend the supreme court there, either as prosecutors in suits which they may have de- pending therein, or as jurors. It is apprehended that the establishing of circuit courts in the several parishes and districts of the island, will remedy these inconveniences and grievances com- plained of Qare.—Whnt will be the legal and proper method of carrying such measure into execution, and how far is the law passed in the inland of Jamaica, on the 14th of December, 1751, entitled "an act appointing commis- sioners of 7im priu.9, and enlarging the jurisdiction of justices of the peace in matters of debt," a copy of which law is hereunto annexed, adapted to the remedy pro- posed ? We arc of opinion that circuit courts cannot be establi red in the manner proposed, but by an act of the legislature in Jamaica, or by the parliament of Great Britain ; and we are also of opinion, that the act of the 14th of December, 1751, a copy of which (inter alia) WIS tint us, and is hereto annexed and returned, is not adapted to the intended purpose, but is very im- perfect, undigested and defective: but to form a plan for such a law, the divisions of the intended counties must be settled by persons well acquainted with that island, as a necessary foundation to proceed upon. RoBT. Henlev. May IS, 1757. c. Yorke. (41.) The opinion of the Attorney ami Solicitor- General, Ryder and Murray, how far an u<.-; of As^an- Uy ought to be repeakd, which would eiulanyer the nyhts ^k' *■ OK TUE COLOMAL CO.NSTITU TIONSl. 461 of purchasers under it, when a long acquiescence has oo- curred. 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. Pownall's letter of the 2oth of June last, in- closing tlie copy of an act passed in the island of Bar- badoes in the year 1713, entitled " an act relating to the sprmg, or rivulet,, called the Three Houses Spring in the parish of St. Philips," which act your Lordships are pleased to uesire opinion upon in point of law: we have taken the said act into consideration, and the agent of Mr. Braithwaite, desiring to be heard against the act we have been attended by his counsel and agent, and also by the counsel and agent in support of it. Upon hearing what was offered en both sides, we are of opinion that there appeors no objection to the act in point of law ; and, considering the long acquiescence under it, and tiie danger of repealing an act by which purchasers on the credit of it may be greatly affected, we thuik It may be advisable to put an end to any fears of that kind, by a confirmation, D. RvDEK, '^ V -■^' ^'^^3, ^V. Murray. VII. Of the colonial judicatories and their proceed- ings : their jurisdictions emanate from the King, under the variou.s modifications of the several acts of assembly. (1.) The sertnd nmfrks of (he Lord Chii the jn'/icinl prr)c"eding-, which was by .erd.c, to be obtained by great parttality and refusal to hear his evidence, and that was .he reason ;,e made no <: ' nee ,o ilie real, urging likewise otlier matter. tObserved, that d.e petition was not till May. 170C, about three mon.lis before Jones iy„n, away, and they owned the Governor had refused to grant the wn. of error, p.uyed in Jones' pe.i.ioii u, hini, becaus.- they observed, be could not ^rant 't, for the petition did not pray a writ of error, returnable before ihe (iovernor in conncM, where only a writ of error, in that island, lies . nor prayed a writ of error generally, l.ut prayed a s,«.cial writ of error, returnable in the assembly ur-^ii,.. rcison M Ins petition, why such writ of error should be gran.ed. And lit's appl" -aiions lo Ihe Governor, ufic.-. were, by .he atKdavii produced by Jone. expressly I.roved .0 be f„r the seme «r,. of error: that, therefore, this was no excuse for not ■■'^ersing ihe judgments, but rather a fresh msiance of Ins slisbting the Governor ■Old council there, whose judgment he thus endeavored to evade ; writs of error, by ti.e constitution, cerii^inly. (TMs stated as if two dis.i.ict things were asked' by the ptiinmer : First a writ of error; Second, a hearing before assembly ) 464 OF NIONH OP EMINENT r.AWVRKS. be granted him, and tliat the trial of his ease ni!j,-ht he heard before the general assembly, the (Jovernor^oould not allow thereof, as beinjj; a matter appertaining to the cognizance of the Governor and conncil, and not of the assembly, who, alone, by the eonstitiition, have not a power to reverse the judgments of inferior ('(Mn-ts. lint* the eonnsel for Mr. Jones, or. the other side, ad- hering to their opir.ion, we desire your Lo;- Isliip will please to lay this matter before her Majesty, tliiit we may know her Majesty's pleasure, >vli.>ther we are to hear the said Jones' counsel against the said judgments, or whether they are to be accepted as good evidence against him concerning those articles; and in that case, whether her Majesty will not be pleased ♦:> direct that writs of error be granted him, to the end he may pro- ceed in the regidar way tor endeavoring the reversal of the said judgments. W/iifeha/r Maij 12, 1709. T. Parkkr. My Lord ; In obedience to her Majesty's c,ie.- Huij;, Chi'f Juftia:. 'M'urr. ^^V.. lK,pr ,!,.. I,,,,.,,! „,;. .,.„ ,„„,,,„,„ ,„ „„^^ ,„„ ^,„ ,,^ ^^^^. ^^ ^^^^^ ^^^ m.x.er, m„l not ns„., .|„„., ,„ „|„„„ „„,(, ,, ,,,,|„j. ,,,„„„,|j. „„, |,^_^,^ ^ ^^^^^^ .. l.-m.,| to II,. ,.ons,.l.rUi..n .,f il,,- bo.nl, nor (that «•._• ol.serv,-.! ) nske.l by Jone, ♦Ofr,T,Mi t. ,li,,,rov.. l.y ,„liauv,,s tlu ..ull. an-l vntv of Uk- (V.s ro.,ta,neJ in Uk saiil imlietiiicnts niiil jii.lf;ia. ills lli, rem. t'l'liat the convictions an.l iu,l:;„„Mis o„ il„. i,„l.,-in,ent.s. wlnl.st lliey remain „n- ••"vcrse.i, arr conclusive j.rooli of ll„. vrnty of il,o liuts a^-a.nst ti,e party so .ndict- cti and convicted. HI 466 OPINIONS OF EMINENT LAWYERS. fcHi ft . to have had tlio .-aid judoiiiGiits iTverscd : :ind till that was done, the ,'nid jiidi;inc'iits oimht to )o i-t'ccivcd as full evidence.* To which Mr. .lones' eouii;el replied, that he liaini, a maltei- appeitaininL'; to the cognizance ol' tlu' (li)vernnr ;uid council, and not ot' the Jisseuilily. who alone hy the con-titution, have not a power to reverse the judL:inents el' iulcrior courts. But the coini-el on the otiier siih' adhering to tlicir opinion, ■vve desire _\(iur Lord-iiips will ph;i-e lo ia\ this matter hefore hei- .^hljesly. that we may kuou hd' >hij'est\"s pleasure, wlietiicr we ai-e (o hear the slid .lones' coun- sel against llu- saiil judgment^, o,' whether thev are to lie atte-ted a- good e\ iiU-iice auaiii-f liim coucerniiiH those artich's; and in that ca ••. w hellu r he;- Ma jest v will not lie ]ih'a-e(i to diiee|| ih.it w lit- oj' error he granted him, to the cud he ma\ \u iceed in the regular Remark* uf Sir Ptier King, Chief Justice. •E-Hpriially (WTing, in tliix cftir, ho nercr mndc ony proper ami legnl sicp lo |«t the saiU jml^^nuiita rrverMd. tTlint JoixN never pctilioneil for n IrjjBl wril of t-rror lieforo tlir (Jovenior and council, but before Uie (iovrrntir nnd nssrnibly, whioh writ of error il.iiti not, hy tlH- Inw or constitiiiion of nrnnuda.4, lii> lie(<>rc ihetii. IQrfic. — WIm llur any ueittaiuii lu pray ibii ilircriinn flroni Iter Mn city. or THE COLONIAL CONSTITUTIONS. 467 way for on,]oav..rin- ihr rovoixil of the said judgments. IVhilJittll Mat/, 170!).' p KING {•!.) Ih. ophnon of the Athnu;/ (knmil, Northey, on. the ^t^iitji-al p'lUnj of the rohtiidl courts. T..tlu' iJiirht Il.mon.l.lo tl.. Lords Commissioners for Tr.ido and I'lantaiinns. Mav it please xoiii- Lnnlsliips ; rii olie.lii.nee to your Lnnlshjps^ order of reference, Hgiuliedi,, .i,e I.v Mr. P-ppIe, l.y his letter dated thj lM da; ..!■ Nove.Mher last. 1 have peni.sed and c.nsider- nlofau aet pas.MJ at l5a.).a:nuienl of lauds \v|,i, h tliey could Mot take without the help of ai- a.^t, not lu'luo- a. eorp.,ration, and lor whi. h purpose IIm- aet was nMsonahl... this aet'does •""•"■' "'■" l"i"l'''^'->- under the . hurehwardens, ot the laud M, I,, i„. eoiuiyedtothcm i.\ theserjt of armswho iiad M-i/rd thclandshya decree ol'ili,. ,.,,11. t ol chancery ''"''■''■ ^''■'" ''"''I "I"' <'".io\ Ihe >am.- a^^aiust the heir.s, executors. adu.iui>liaiois. and assigns of Captani .folui Williams wh.,, I,\ (|„. aet is stated tu l,a\e d.. vised a charity ..f Muu I., thai parili.au.l the ehurelnvardenrf wlaueol had ohiaiiied a (hcree a,i,Minst Ifichnid Williama, his adnnmsiraior, with his will annexed, for payment ol'tlie Bumo: on which decree, hmd.s of inhcriiauic of • ll 468 OPINIONS OF EMINENT L.VWVERS. II the said John Williams had heoii soi/ud, which I take to be unjust, tor that it iIol's iiol apjH'ar that tlie testator had cliaroc'd h\< ical rstale witli that lej,'acy, :v,.d lor that the heir of the testator was not made a party in that suit, and has a ri^ht to e(mtrovert that matter ; and hLso for that the purehiiseiv, under the churchwardens, are enacted to hold and enjoy, apiinst the assigns ol' John AVillianis, diTeased, which will make void the niortiiafics, eonvcvanccs and settlements, made hy the testator in liis liletime. Jail liar. J IS, JTIJ. i]D,v. Xortuev. (■').) 'lie :,j}'nii(>n iij t}i< Atlorinij aid Solicitor Gtiier- aL Yiirlu ami HVrt/i.', i,ii th, r yfni/l/.^'fu-t, lit of a ioint of criiiiiiiiil Jnri'sdictitjii in (in: Li ' a:aril L'\- the (Jov- ernor of that i-hind, lie. the said Wiiite, prtitiDiuif the chiif Can niur of all lit, l.mrard IJaiuU (l,\i irlioin all otmiiii.s-sioiis ol oi/i r ,!!t,l I rniiiHr. a-illun that i^avern- iiii'iif, an: /.v.s//,./) /'/r // sjin,/if (nal ' n Spaiii.^-h Tm^n alhnsvnl. or if that could not !;■•, li.i- want of proper of- iieers in tliat island th;il ho niiudit l>e -cnt for to St. Christophci's, and Iried tluic Spanisli 'I'.iwn i an i-find whrre no coiu-ls or offuM'rs are estahlished \'nr the aihiiiuistration of justice. Tlie cidef (;o\crnor, llicnloic, cau.-.ed tiiesaid White to l.c i.rouuht up to St. Christoplier's, where he was ex- aniiuc! hi-^ M- je.>fty'.s .•ouiK'il llicre. and they thinking ili"n w,is iriva' < ausc (o misj t fh.it Wiiite was guilty cl* the .siid uii ..icr, (ii.- .^uid .hief Govcrnur awarded a special comuiidsion of ojcr and ter 'f' OF '^HE COLONIAL CONSTITUTIONS. 4fi9 iihuT, lor law trial in St. Chri.stupher',^. and Wliitc has mi'-c '".ru vonricUd uf the ninr^ler of Ctn-if, befon- those coimuis.si >i,a-s, by a •unj of St. Chri-stophtr's, and receiv- ed sciiti'ucc of doi" . 'reupoii. The .statute, ;'>;](i ='.iiry VIll. reciting that persons, upon "eheinent su.« ,siid council, or tlncf ()'■ them, uptm such, examination, shall think any per.-oiis so examined to he vehemently suspected of anv treason, misjirison of treason, or nuniler. that then, in v\rv\ such case. ])y the Kind's conimai.dment, his Maj- esty s ((.mmission of oyt.' and terminei'. under !iis -^ivut seal, shall he made hy the chancellor of Kn^dand to such pcr.Mins, and into su(di shn-.>s, as vl.;,!i '^ named and appointed hy the Kin-:, lor the speedy trial, conviction, nr (leli\eraiice. of such ollendeis ; and that, in suidi ease, no chalienu,. il.r (lie >hire or hundred siial! he allowed: willeli statute, thouiih it Ke rei>eal.'d. h\ the 1st nil I'd 1'. and M. as to treason , yet, il i-^ apprehended. il i.s not a- lo murder. (fidir I. Does not this latnte uukv such an altera- tion in the comm.Mi hm. and .-o i nlaiKe the kind's pre- rogative as t.. trials in luuider, ;,s well m his eoleniesas in II! ' kingdom of England, that he ma_), if ho ihmka 470 OPIXIOXS OF E>tI\E\T LAVVVERS. i fit, appoint luiv uiau (cliaruod with that offence in any of his colonios. and exainiiu'd as the act directs) to be tried in any place there, other than tlie phxce or ishand, where the ofVeuce was comjnitted ? Qiirrrc -J. — It" such power be in the Kijip-. can that power be executed by his Governor in St. Christopher's, who is expressly empowered by his Majesty's commis- sion, to erect courts of justice, and issue commissions of oyer and terniincr, within this government, as he shall thinix. fit; and c:in a cuimnission, in the King's name, mider the se.il of the Leeward Islands, and an examina- tion ijefore the Kind's council there, (who are actually nominated I)y tlic Kiuu, ;iud by his instructions, called his council.) be tak'Mi to be .^uch a. commission ami ex- ani'iiaiioii as !■< mcuit by. (u' comprehended within, the wor i>; 'irdtwioi! ,,| tiijs act :' (^ifdir. :]. — If this commission, in this case, be not war- ranted by the statute, it is not. nevertiieless, warranted by tlie Kiiu's ]Hcioua(ivc in his colonies, and well sup- ported by the powers .Mij.ni, which his Majesty, by his commission, has -iven to tiu' Governor of St. Christo- pher"; , i'.id. upon file whole matter, is the trial and conviction of White le-al or not ! '/:. ut of the colony within wlii( b -ucli conntiission is ^'ranted. 7n 'fwre 2. — This .pie-tion depeii.ls upon the for- mer, and is answered under that 'Jiitjiutyn 3. — '"'he legality of the counnission upon which White was tried, will d. ; npon the ctnistitu- OP THF COLONIAL CONSTITUTIOX.S 471 tion of the government of tlie Leeward Islands, and the jurisdiction of the courts of judicature in St. Cliristo- pher'.s, which is not sufliciently stated, so as to enable us to giv- '- certain opinion thereupon. If the island of Spain nil is dependent, as to its government, on St. Christophers, and crimes committed in the lormer can be, and Jiave usually been, tried by connnissioners of oyer and terminer in the latter, tlu'u we conceive this commi.ssion was well warranted, and the trial and conviction were legal, in case there be no other objection against them; l)ut if crimes connnitted in Span' h Town cannot, by the laws of that government, be so tried in St. Christopher's, then- this e()mmissi(.n, and the pro- ceedings thereupon, were against law; and there being no settled courts of justice in Spanish Town, we appre- hend the safest method of bringing White io Justice ia to send him over into England to be examined before the privy council, according to the statute ;5;]d Ileiu-y VIII. whereu[)on a special eonnuission of oyer and terminer may be i.ssued under the grrat seal of (iieat IJiitain, for trying him pursuant to the directions .,1 that act ; but as that may be attended with gicat trouble, if the (iovern- or lias uutliority by hi,s e(.nimissio:\ and instruetionH to erect courts. anr purposes, m onler to tlie trying of the prisoner v, ithiu S; ,iii>h Town, 1*. VoHKE. I'uinuKr, 18, 1725. C. We.vko. i Vr m tBK'tems 472 OPINIONS OF EMINENT LAWYERS. (4.) Thn opinion of tj,^ yl on til '■ jiirifidicfion of fh':. ./ ttornoii (hneral M\tn'cn anhitca coi/rf-f. To tlu' Kiirlit TI on. tlio Lords C 1 ide and Plantatioii,- 'oniiiiissionors for ii T May it j)U'as(' your Lordships. 11 i)ursuanoi' ofyoiir Lordships' _ dc-siro, sii-iiified to mo by a letter from Mr. Pownall, bearing,' (hite the 23d of Mav last, iiiel )siii h ordered the .Vt(<.int \ (leiieral of the island to pi(H(Hiih- lovcr- iid Mr. .Moi'se for 1 la V ini;' hi'ld a court o|' .\I /nsf /,r/f'\. w itliout iic^t\- coiuniissioii. and liicjosiuu' a ( i>li\- ol the pinceedln-s ol" (ho court thereN|i(Mi, and I (piaint iiM'. that a- tins aHJiir I i> ac- las occa>.ioiird ...ih li heat and disturliance in the island, and vour I paring- (ii write In Mr. Knnwies theieu| ship.^i be;;- the fa ||rd^lllp- ari' jire- L.ud- liljl, \ ''Ml' \"ur (i| iu\- tttuted >|)iniuii iipi'u the case, 111 his liiriiier letter upon tins subject, an OP THE COLONIAL CONSTITUTIONS. 473 soon a ^ I conveniently can ; all which papers are here- with returned. I have taken the n atter into con.^idera- t.on, and am of opinion, that Mr. Mor.se had no authority by the word.s or meaning of the .siid act passed in Ja- maica, to hoh] a curt of nisi prius, and to hear and de- ternnne cau.ses thnein, without a commission from his Maje.sty. The .said act expressly .say.s, any of the justices oi the supreme court of judicature are to be appointed hy a conmn.ssion under the broad .seal. It refers their jurisdiction t., that of justices of assize and nisi prius in Englan.l, under the 13th of Edward I and <.ther laws. Now^ justices of assize and nisi prius in England, derive their autlu.rity from the Kind's coin- nussion, and never act without. In that part of the act whi.di gives power to ente. up judgments hy defaults, the actions are described to be ...ch as are triable in the country, uj.on the commissions limvihffore thnifi'tiial. The power given by the said act is plainly copied from tliecaseofju.c.ticesofm-.s/ /,./.,.. in Euglaud, who act bv .«ommi.ss.on, and has „o relation to thnt authority which IS give, (o the two chief justices and chief banm, by an act passed the ISth of EIizal)eth. If Mr. M.mse acted ignorantly, an.l IVo„, a misappre- luMisum and misconstructi.m of tl... act, I think he is not liable to a criminal prosc.Mition, f..r a bare error of ju.i.^- nuiit III respect lo his jurisdiction. "^ Ifhe acted .seditiously, incontempt of tlH-Kiu-'saudior- 'ty. and in .Iclianre <.f law, I think hr was, and is, linblc J" be prosecute.1 by infonnalion, as f..,- a misdemeanor bat m every litrht, I anpn.lH.nd th- .our. has do.u' ;vr..ug m refusing b. issu. process upon tl.o inlbrmation, mod by the^ attorney-general, and takiug upon them- '-' J. n Mi ! = t i IMM- 474 OPINIONS OF EMINENT LAWYERS. selves, as it were exojfirh, to judge of the information, and to quash it, not for any irregularity, but upon the merits. tTune 24, 1754. W. Murray. (5) 77ie opinion of the Attorney and iSolki4o7', lii/der and Miirmij, on the jmifsdiction <>f the Bermuda courts. Tt) tiu Right lion, the Lords Commissioners for Trade and Plantations. May it please your Lordsliips; In pursuance of your Lordships' desire, signifieu to us by Mr. Hill, in liis letter of tlie Sth of Decm1)er last, in- closing letters and papers received from AVlUiam Poppel Esq., Ips Majesty,s Governor of the Bermuda I-*lands, (which are herewith returned,) and desiring out opinion upon the cases therein stated: with respect to the case stated ))y the chiof and as^istant judge of the King's bench, in the Uernuid;i Ishmds, we have taku it into con- sideration, with the several iji/ffrics subjoined. As U the lirst ijiuerr, we are of opinion, tliat the judges of the King'^ l)ench had full power to issue their pre.-ept to the freeholders, and con. pel them to execute it in the case ]n\f, of a justice of peace resigning, notwithstanding that particular instanci- is not menlioned in the enumera- tion, the plain intent of flu' act, in that part of it which is referred to. being to supply the want of a justice of peace where that might happen, from whatsoever cause that want might arise; nor are the words incapable of that precise I'onstruetlon, the wonl inability of anv justice of peace being eipialiy ap])lieable, even in a proper sen.se, to the ea^i' of,! lustice who disables himself bv resifua- tion, as to that ofdue di>alilcd b\ ;iny otiier means. As to the >e<'ond and tliiid ,9, stated bv Gover- nor Popple, in his letter of the 8th of July, 1749. There are four qua Vs which he makes: to the t"wo first, we are of opinion, that hoth the whole acts in the times of Governor Pitt and the present Governor's brother, are determined, and each ceased or expire.! on the determina- tion of the govennent of the respoctive Governors in whose times those laws were made; to the third and fourth qnaries, we think as the country had the benefit of the free enjoyment of the fishery, they 'M,irl,t, d„rii,g the yenrs of that enjoymeut, to make good the 011^11111"- dred pounds sterling a year to Governor I'oppl... The method ofreliefis by his Majesty's recommending it to their assembl<-. April 13, 1750, I). KvDEn. W. Murray m 1 1 i 476 OPINIONS OP EMINENT LAWYERS. (6.) J//-. Zumb's opinion onthero^ntsof^'onlh Carolina. To the RiirhtHon. theLvuxls Coimnissioners forTnule and Plantations. My Lords; In pursuance of your Lordshi])s' ooinnmnds, sig-nified to me by Mr. Hill 's letter ot'the ITtli of October, 1747, I have perused and "onsidend the following act, passea in South Crrolina in Jinie, 1747, intitletl " an act to em- power two justices and three freeholders, or a majority of them, to determine in all actions of debt, where the matter m dispute doth not ex -eed twenty pounds current money, which is now equal to four pounds proclaiyation mone^ and is not more then seventy-five pounds current money which is equal to fifteen pounds proclamaticm money." Since this act has been under my consideration, I have been attended by the pmvost-mar.shal of this ijrovince, on ])ehalf of himself and other patent officers there - dio have petitioned against the passing this act, and I have heard th'Mr several obj'ections thereto, and also have heard the agent of the said province in support of the sa-.J .irf, and shall here represent to your liOrdships in what light this act appears to lue. I find that iu the year KiD'J, an act passed in lliis province, intitled " an act for the trial of snudl and mean causes, wherein (mo or more justices of the [jeace were .-mpowered to deter- mine actions not exceeding forty shillings v urrent money, which was to contimie for two years." This act was af- terwards revived, from tiuieto time, and in 1712 was, by an act, made perpetual; and in 1721, au act passed where- in on.' ju-ti<'e of the pca-'e was eiupou\"icd to deteruiiue actions not exceeding ten pMimd^ cun-cut dkuicv, orfortv shiljiug.s, This act was rcpcdcd iu 172(1, and an act then OF THE COLONIAL CONSTITUTIONS. 477 passed, wherein one justice of the peace was empowered to (k'tennine action;' not excee.lin.ir twenty pounds cur- rent money : and there are tees appointed in th( e acts for the justices and other officers, for the execution of the sune. Thus tliese acts stood till June, 1747. when the net now under reference to mepas.-ed: and [ hiid this act to he, in many respects, difTere-.t from the former acts, and that there ;!iv man\- good and ])roper (dauses in- sertetl, supp...sing that the foundation of the act was proper; Init it must first he considered, whether the same reason will hold for .so sunnnarv a wav of determinino- actions not exceeding twenty pounds currency, as the law stood hefoi-e, as for .so large a sum as seventy -five ]K)uiids currency, which has l--en represented to me to be e(pial ( • tweleve pounds sterling, which is a large sum in thac coui.try, and the greatest part of the actions are within that sum. At present, the Kings court of common pleas. I)\ jui'ies' determine these actions as they do here; hut hy thi- net, actions wiihin that sum will not he cog- nizable th. ,<>, but only before two j.. 4ices and three free- holders, or the >aajority of them. This is, undoubtedly, a great ])ower invested in such a judicature, and mo-e so, when by this act one justice is empowered to ma'ce the whole court, Iiy summoning any other justice a id any three freeholders he thinks proper; and this would l)e fnrtlier liiil)le to the -reatest ol»jection, was tliere not, l)y this act, liberty to appeal from any judgment to the <'ourt of coiiimon pleas. This kind (.1' .judicature origi- nallv arose, I imagine, from the court of ctmscience in the city of London, Avhich was at tirst C(Uifined to lorty shillings, and now ccmtinues the .same ; but this has been .IS ajjpcais before, increasing iVom time to time, and was as 1 am informed, attempted to be canied mu(di higher p I' ! ii -IV ■?■•"■ ( , J <; t f ^,'S OPINIONS OF EMINENT LAWYERS. than by this act. At present, the execution of all pre cess upon these actions, is by the provost marshal or his deputy, who is an officer hy patent from the Crown, and give-, security, and acts in the same capacity r.s sheriffs do here ; but hy this act, that part is thrown into the hands of tlie constable, who is to levy all m.oney upon executions, and to pay it over to the justice of the peace, who is to pay it to the plaintiff. This appears to me to' be liable to objections, on account of the sufficiency of the persons in whose hands the money is to come upon these actions, who give no security, and the difficulty of recovering the same from them ; and I beg leave to oh- serve, that there are no exceptions of debts due to the Crown within the compass of this sum, .vhich must also be levied by the constable, and not by the King's offi. cers. There have been many objections laid before me, as to the imp icticability of executing this act, and the hardships of the present patent officers, who will oo de- prlved of their ])rofit by the Joiisiness from which their fees arise being diverted to another cliannel ; but to that it has been, and 1 think, may be, answered, that their fees are not by this act given to any other persons, nor are they lessened, and if it be necessa-y ''ir the public gc-^d that such a judicature as is • tended by this act should 1)e erected, that private advantiiges of the officers ought not to interfere. 1 shall tuiiit the many things that have Ixjen suggested to nu' for or against this act, as I think the two points upon which this act is to be determintd are b 'fore menti med, and am of opinion, that what is allege- ii r,ie preamble of this act (which is the same as was in .he tirst act of 1G92, for forty shillings currency) should be fully proved Ijefore the same should pass into a law, whereby the trial of such actions in the 4i' OF THE COLONIAL CONSTITUTIONS. 479 King's court of comnion pleas, by juries, are taken away, and put into such a petty court of judicature ; and that the officer under buch court, to executed the process^ should be of sufficiency to answer to the King, as well as the subject, for his behavi(>r. This act took place im- mediately ti m\ the passing, and is to continue five years, and there is no clause suspending tlie execution thereof till approved pursuant to the Governor's instructions. Lincoln's Ian, Jan. 30, 1747. Mat. Lamb. (7) On, the court of chancery, in Barhadoes, hy the Attorney Genci-al, Northcy. Totne Right Hon. the Lords Commissioners of Trade and Plantations. May it please your Lordships ; In obedience t where the curt is hehh.ii to have a com dssion i,, take his answer. In this case, it ai)pears l.y the petition and aUidavits, that the attoni'ies ol the defendant did desire to appear for liiin, and the aihdavit is that the costs were oO'ered to lu- pai.l, hut the attornies prayed to Ih« made partf..^ to the suit, which could not !.e: for if ,.o, the plaintiff wouM huvc^ heeu deprived of the di , overy he had a i i-ht to have from thedcH-ndant l»y his oath, l.iit they should have appeared li'i- him. i,nd prayed a coimnission to tako his answer. wliKdi I do not ohserv.' was do,,,.; yi it ;.-. ali.-cd hy tiir petitioner, that the prayer t. have tlu^ altornie< inadepar(ie> is according- to the c,,, slant prarticeof the inlands, whmv the parties thenis.dv.- arc ih.ent. iJut thr defrndani M„irh( (o have h.en adinitte.i to appear hy utiormy, and uas i,.,t hoim.l to appear in per.soii, a.s it is sworn was insiste.l on. This howev. r. is hiit the fact iis il i.s .(ated l.\ .,„(• side, the olhe,- not hav iiijr i,ad "ir":tiinity f., he heard, and. for thai leaM,,:. I am of "pinion her .Majesty will not he .uivi>cd to m.ake anv .such order lor the p.-titioner'- ivliefi- i^ prated hx the potition : he;ddes, it is nut ns,ial for her .Maie^ivto ii<(<'ipo>,. in cuiLses I.etween party and partv .lepmdinu' in Imr .Majesty's c<,urts of justice, hy gjvin- directions in uh.i I, inner (he j.idires of .^uch conrfs shall proceed therein ,i.M- \Ndl il ',e pn-p.-r. f.ir thai wlc^n there shall '"■^"' •'I'l"''' '■•'■ ' ""■ ""■'! (('(iiii. r C>. IT""). Enw. Nciunnv. (8.) 7// npiiiioH of Mr. Jaiisuii, i))i tlir jioira- of the (rol-f j'll(li:9, an ('InlllClUlIf-^, or,,- l,flnfs\ To the "Riulit Ilonorahlc tlie Lord< Commis-ionors for Trade and IMantatinns. .Ma\ it ph'a<(> your Lordships ; In humltle oludienco to your Lordship?' connnands, siijnilied to mr iy Mi. i', \Mi;dh ly liis letter ol' the Kith of Deecni' r la-!. I ha\" pi'cparcd the ih-in-lit of a clause, i;i\ in^r ill ilic (iovornor< of llu^ phmtation-. ns clinncenors. th necessary ])owcr to issue conuuis-iion for the care and custody of idiot.- and hiniiticvi, airreeahlv to the 11- |.j;.. an I practice of this Ivin^doni. .\nd when-as it liehdiL'cth to iH, in rjtrht '.if our io\!il |ircroiiati\-c. to hav the cii- tody of idiots and their estiites, and It) lake the projil- tlcrcof to our ',-sents uive and L'-ant unto you full power and autiiority, without expectiiii;' any l'(,rther special wanant from us from time to time, to .Uive oi'd ■!• aiul wan-.!ut lor tiu- prepal•in^^■ of -rants oi' i\ir ci. are, or sf I I,,., iouu.l hy inqiiisilinns thereof taken or to he taken, and retiunihlc into our con . of cliancerx and llieivii[)on to ui.iLr and pa>s -rants and cominil'nent> under our -reat seal of oui' iMovince of,— of lliecu-lodicsof ail and r\ry\ >uch iiliots and lunatics, and llieir otatc to sucli person or per.-on^, uitoi's in that hchalf. a< accordiu- to ijir i nie- of lav,, ;iu(l tlie u>e ami practice in the hke case.«*, yon >hall jud-e inci't l"r Ihat tru>t ; ihe said -ranis au-l .ouimitnient lo In.- made in such mannei- and form <ion.s, and aMc.'iiiints. on ll,,- pait..| llic ■ (.nnnittec and K«'imlefs to he p lion,;, .(I .uid sncli .^ccin'il\ to ■ hv theui -iven, as shall he ivqui-ile and nredfid lot/t July, 177L'. I!n. .I.MKsoN. (9.) A m'ondojtiitinn „/ t!>r y.anu hnnj' r,<})i tin ■sttmr sufjat, in a kUti to tUc ^Sucrduty of the Board. OF THE COLONIAL CONSTITUTIONS. 483 Dear Sir: This accompanies the dr;ui<>;ht ofa clauHe to ])e inserted in the coniniissious of (lovei-nors in tlie plantations', rcs|)cctin,<>; hmatics. &c. It is very nearly the same as thf warrant under whicli (lie cliancellors of Great IJritainact ; which 1 timuslit advisable (havinji at (irst framed it in Avords more diilerent.) liecanse the care an\vv an\ sot of words newly devised. The alterations I have therefore maiK". are onl\- to suit the clause to that in which the two countries din'er. The warrant of the Kin- to tlic eluuKellor assi;j;ns his custody of (h,> t;,-eat ■c.il a- the reason whv the authority is dclc-ated to liini tiiat reason is preserved in the (h-ausrht i send you, ai so fir the commission -ontaiuinj: sucli a clause will ;Liive tlio i .wcr to the li-overnor as chancellor (or as presi(h'nt of the court of chancery in coloniivs where he i< so) liut ii cannot he more incorpoi ded into the office' of chMineli,,,', ;is I roneoive, hecau^c neither Ih.' warrant in Kn-land, nor the commi-i-n in the c,,loiiie< do<>s or slionid confer a .i"''i'i''l '"dhority : that, the <-liancellor liad h.^fore, in in;i(ter> of e ,iiity, and the courts of law. in matters of '■"""""" '•'"■ i>" the ca enf iiiiiatics and their e>tale^, us well as in the ea^e of all <,tliei. 'n,,- warrant in Kn;,^- land, therefore, I think, onl\ -ise. jxiuers ,,f ,„//,,„„>. tvdtloi, n/ ),i,ni,i,/nnnif. :\uA |oi tnat pmpose |.uts the ''''"'"•''I''"' ■■■ "'<• I'l'i'c of II,.. Ki,,o It ,., ,,,„.^ti.m ill law or e,piit\ arises, that ,|Ue^tioii ea,, ,,mI\ I.e decided l)y ImII or action, iude>. it he, a (|ues|iun Iwiween the I'lnatic an.i his coniinittu<', \s hich the lunatic himself lrf^:ili I f j IL^tiyri I * • 481 OPINIONS OF EMINENT LAWYERS. C'juld have dec;, led. had he onioyod ihe use of his senses. These toosliould be the h:)u,uls of the G .veni'jr'.s power ; and I iiave. Uiereliiiv, chosen the exoression of an iuslriiuieiit, Ihe foree and elfeel of whieh have been long understood. 1-M July. I(n,„ J^tKsON. (10.) llu: oj)inioL ■>/ tJv^ Att'inuij niul S Jailor, Puj.J.ir and Stni.tye, on the u-cvtiii.j of a awt nj cxc/tcr/uer in ihe colonics. Qiuere 1. AV'hether ihe Crown has by the prero-rative a power to ereet ;i eourt )f exdieiiiier in Snuth Carolinii ; and in what manner such cont slionid be ere-jted .' \Ve are of opinion, that the Crown has, bv ihe prerogative, powiM- to erect a court of exeheqiier in Soutli Carolina, which may be dime by kdters pabait luuU'r the seal of the province, b}- virtue of his Majesty s commission to the Governor for that purpose. 1'. What powers a ourt so estal>lished will have? whcfher they wi" extend as far as the .-ourt iexcdiecpier in England ; and wbetlier the [.roeeediuK's therein pllindd be the sauio as in Enjiland > We are of opinion that Ids Maj'e- ty nuiy iMect a euun <,| exclieipier in South Cnoliua, V. llli tbc-auic powers as the ( oin-t of exeheipter here has; we think the prweedings in -iicb new erected court sh .aid be ao-rt'cably, as near n- uij:y be, to the practice here. 3. Whether the Gov«'rnor, ly his eoiiuuissiou or in.structions, be sulliciently empowered 1.1 appiaiit a (hief baron; and in what manner such chn i l-nnn should be appointed] We think the general [.nwer of .-reeting cnurt.-i of justice, n.s given by the connni-i.a, (,, Mr. Ujr^ey, would bo suUicicut ty autlioriiie hiiu to appoint OP THE COLOMAL CONSTITUTIONS, 485 a c hief biinm; hut as by the 39th in^ionand instructions. Init yet it would he more proper (if his Majc^y shall he so plenscd,) hy a special conanission to his governor, to iiuthorize the establish- ment of sucli ii court and the constitution of the chief bnron ;ind other officers of it. i-l-/l Juncl-ir^S. J..STR.ANGE. D. KVDER. (11.) 7 /ir A If >nit,j Gemviil NorCuifn npii,:-) i, on an net of 111': Uarba'loe.i Asiunhhj t, ..ocX: the cntml of an siflatJ. To the Tiight Hon. the Lords Commissioners for Trade and Plantations. May it ])lease yom- l.ord>]iips. In ohedieuiM' to vour i.ordslii|)s" eouimands, signified to me 1,\ Mr. ['opple, I have consid(.red of the enclo.sed act. pas-ed in 15:irhadoes, intitled 'au act to dock tlio entail ol' Mount I.ucie plantat'on, and otiier, the estate in this island vl' .b.hn Faieie IJlackman Km|. ami to vest the same in the said John Lucie Hln.kman, in fee simple," uliieii ael hath lain with me ,-inee tlie hdh of l-'ehniarv last, heeau-e I enuld not proenre a >i-lit of tjie wills tliei-em mentioned. i)iit liaxing umu -, en and jieiaised the same, I have no ohjertion a-ain t the .-aid act. hut am of opiuin,, tliat the sam is \ns{ and reasonable, and lit In ho approved ot by his Majesty, especially fur that \m 1 1%. I i i i^^£& mM mn . , 1 486 OPINIONS OP EMINENT LAWYERS. I hy the laws of Barl)adoes, a deed registered in that plaututiou (where common recoveries arc not suffered) will be as effectual a har as an net of assembly, Init Mr. Blackmail, living here, hath been advised that an act of assembly will give most satisfaction to a purchaser. 7lh Ocfj^>e/; 171-5. Ewo. Northev. (12.) Ihfioi.ininofthe Solicitor General llvmi^ou, on the same ■■^'ubjrrt. Sir : In obedience to the comma-ids of the Lurds Commis- sioners of Trade and Plantations, signified by yours of the 4th instant, I have considered the act to dock the entail of certain lands in the parish of Chrish Church, in liarbadoes, and of several negroes ihereon, and of land in the town of St. Michael, and to vest the land and negroes in Chrisbimrch, in Alice Tickle, spinster, and the land in the town of St. Michael, in Francis Jemmott, his heirs itnd assigns for ever; and 1 am humbly of opinion that the act is very proper, and is only to supply the place of (ines and recoveries, by which, according to the law of Kngland, these partio in whom the fee .simple of thi-sc ,->tntes arc now vesti-d, might, if the e.states were in Kngland. have effectually st-ttled it, as by this a. (.and bimv,! all remainders; so I cannot think tiiciv is any objection (o ||u. pussing this act. li'i//^ S,j,trmhcr, 1717. W.M. Tmo.mson. (l:'..) Tlu: opinion nf (h, Attorns ;, (ir^n ntl Xortlu;/, on the \;i/'i,- .sn/.j,, t. To the Ixjuhf Hon'!r>'i'i- '!i- I .- 1 r" • • i> Trade and I'lantations. $ OP THE COLONIAL CONSTITUTIONS, 487 May it please your Lordships ; In obedience to your Lordsiiips' commands, sicrnified to me by Mv. Popi)le,I have considered of an act passed at Barbadoes, intitk I " an act to dock the entail limited on a certain pbuitatiou situnte in the parishes of St. IVters and St. Andrews, in this island, and to enable Geor-e Nicholas Es,i., and Susannah his wife, to mortgage or >ell the >.vno. willi the negroes thereto belonging-'" and [ do humbly cevtily your Lordships, that 1 havc^'no objection against the said act being confirmed by his Majesty, the intent of the said aet being only to bar an entail for the sati.- faction of laurha-ers, which T am of opinion might have been done without the said act. ,////// 27//^ 1717. Ewn. Northey. {\^.) Thr opinion of the Solicitor General, J. Jf. ^[htihl. on till' \innr .sii/ijert. To the Kight Hon. the Lords Commissioners of Trade and Plantations. May it please your Lordships ; In ol)cdicu(e to yoi.i- Lordships' commands, signified tome by letter from Mr. ]»opple. transmitting to me an act pa>~ cd in IJarbadoes the thirty-first of Mav, 171G intitU'd '■ an act to dork the entail limited on a certain plantation ^ituate in the pari>h of St. Michael, and to iMiable Thoni.c. Sonicrs Ivcj., to sell the sime, with the negro slaves thereunto Ixdong-'ig," and recpiiring my opinion thereon, in point of law : 1 Inive considered (if the said act. .and am hnuil>!\ of opinion, that the said Thomas Soincrs being st-i.^edof an estate tail, in the said lilani.ifion and r'.'groes, with the irversion in fceexi)ect- uut thereon, to himself, the [>as.sing of an net to dock I IN : hi] : ki £CII, , ill 488 OPINIONS OF EMINENT LAWYERS- tliat oiitail, :iii(l to \ t-st tlio estate in Coc simple. U v^y his dehts, and to make [jrovisiim lor his liimilv, is just and reusonahie, and no more than what is done constant- ly in Kniiland. I)\ line and recovery ; and ac;s of the like nature have been often passed in Barhad oes. KV// (htohrr. \-\{\ .1. K. A LAND. wr itjiiniin I of t'li. ^\tfo I'll' 11 (I IK I < (IIH / Tiill.oi. Viiit no li r'ii(/. erul-i Yorl, snjfi'ix-(/. [/.'- h'li'^hnu/^, of litiiilx I. can opintli (jf- rtiKiUi/. iml/sstln ■'«nn< husli <'iss the particidar laws or i)i\r tl le en acts of asscMilily of the plantation where the lands li have iii'oviiled that fines or re coverie.' levied or suffered in Enifland, ol' lands there, shall have that ellect ; and in that ca^se, the [\)vrr of such lines oi- rcoveries, de- pends u|)on su(di particular laws or acts of a--cml)lie«, and nnist tic 1 I'Uidatcd li\ them. [■)i/i l>u . i7;;o. P. y C.T OUKE. VI. nor. (10.) ?//'■ o:uiiio'.\ of tl," .llfonK-ii (fi'iK raf Xorfh 'Kih on the riijhf of iipp, ul I'min tin toJonioJ rnurt^ Bv order of the l.nrds C oininissujiierr iMde and Plantations. I scud _\ou the luicdosed extract Iroin .Mr. Lowthcr. (Jo\-crnor of Harhadoe a It ttor uitiin consul enUion whereof, their M iOrdships desire \(iur opinion, as wuni as uia\ oc. u pou this foUowini^ (j ll't )'i . vi/. (^icxrc. WLclher uu appeal can, or ought to be brought, OF THE COLONIAL CONSTITUTIONS. 489 from the Court of Exchequer in Barbadoes, to the governor and council there, us a court of chancery. July \^th, 1713. Wm. Popple. I am of opinion the Governor, by virtue of his instruc- tions, is to admit appeals as well from the court of e-- chequer as from other courts in the island of Barbadoen to the governor and council there, and this plainly was the intent of the governor's instructions, no appeal being directed to be allowed from any court to her Majesty, but from the court of cliancery, which would have been provided for, to have been from the court of exchequer to her Majesty, if an appeal had not been intended to be first in the chancery. IC/A Fehrnary, 1713. Edw. Northev. (IT) Vie opinion of tlie smie Imcyer, on the same topics. To the Right Hon. the Lords Commissioners for Trade and Plantai is. My Lords; In obediejice of your Lordships' commands, signified to me by Mr. Popple, I have considered of the petition of William Cockburn Esq., wnereby he represents to your Lordships that he, being appointed by the the Lord Archibald Ilamiltim, late Governor of Jamiiica, to exercise the ofhce of secretary and clerk of the enrol- ment there (Mr. Pnge, who was the deputy of Mr. Con- greve, who had those offices by i)atent, voluntarily ab- senting him.self from that island) did execute the same from the iUh of March, till the Gth of Aug... , 1716, when bo was removed by Mr. Haywood, the succeeding Governor of the said plantation. And thereupon a bill 63 i/i a-yrtTf ft 490 OPINIONS OF EMINENT LAWYERS. was broudit against the petitioner by Mr. Bcokford, who was appointed l>y the said Mr. Congreve to be his de- - puty, upon the death or absence of the said Mr. P-ge, and a decree was given against him in Jamaica fir more money, as the profits of the said ofRce, tlian he received during the time that he executed the .same, without making any allowance to him for the execution of the said offices ; against which decree the Governor cannot, by his instructions, allow an appeal, the demand being under the value of five hundred pounds sterling ■ humbly praying that his Majesty would beplea.-ed, for the relief of the petioner, to give directions fur re-hearing of his cause, and the doing therein what to justice shall ap- pertain. And I do most humbly certify your Lordships, that the petition is unadvisedly framed, for that his Majesty cannot, by law, give a directi'ii to any court to re- hear any cau.se depending thereni, l)ut rehcarings are granted, or denied, I)y courts of equity, on petition of the parties grieved, to such court as shall be judged proper. And as to the instructions given to the Governor men- tioned in the petition, wherel)y he is -^strained from allowing an appeal in any case under the value of JCoOO sterling, that does restrain the Govcrner only from granting of appeals under that value, notwithstinding which, it is in his Majesty's pi^wer, upon a petition, to allow an a.ipeal in cases of any value wliere he .^hall think fit, and such appeals have been often allowed by his Majesty ; but I think the reference to your Lord- ships in that matter is improper, for ])etilions for a])peal • from decrees given in the plantations, have bee-, always refered to a committee of the council for hearing the u f? OF THE COLONIAL CONSTITDTIONS, 491 causes of the plantations, and on their report that it is proper to allow the appeal prayed 4br, his Majesty in council has usually allowed the same, and not in any other manner. I have perused the decree, and think the petitioner has great hardshi[ therein; and that upon a prope- application he may obt in an appeal in that cause. Dec. im, 17T7. Edw. Northey. (18.) 2he opinion of the Attoniey and Solicitor, Ryder and Murray, on the commission granted to De Lancy, the Chief Justice of JSfeio York. We think the Governor should not have granted this connnission different from the usage ; )jut as the powei given by the commission is general, we apprehend the grant is good in point of law, and cannot be revoked without misbehaviour. 2oth Jidy, 1753. D. Hyder. W. Murray. (19.) 2hc opinion of the Attorney General, Yorke, in 1728, on the Kinfs right to order a nolle prosequi lo he entered on prosecutions, in Jamaica, for the penalty of an act of Assemhly. To the Right lion, the Lords Tommissioners of Trade and Plantations. May it please your Lordships; Li obedience to your lA)ra>hips' commands, fignifiod to me by letter Wnn Mr. I'diipk-. dated the (ith of August instant, referriii'j; to me the inclosed papers, (the titles wiioroof are contained in a soheihiif hereunto annexed), relating to an information exhibited by hia Majedty'a I , It 492 OPINIONS OF EMINENT LAW VERS. Attorney General of Jamaica against Mr. Donovan, agent for the contractors for victualling the squadron in the West Indies, for the duties of a quantity of rum, brought from Barbadoes, ai.d delivered on board one of his Majesty's ships at Port Royal for the use of said squadron ; and desiring my opinion, whether his Ma- jesty may lawfully grant Mr. r»onovan a nolle jmmqui, as the law stands upon which the information against him was hied. I have considered the said papers, and another paper laid before me by Mr. Sharpe, agent for the said Mr. Donovan, and affirmed by him to be a true copy of the said information, and also an act of as.sembly, passed iu Jamaica on the 13th of November, 1724, intitled " an act for granting an additional revenue to his Majesty, his heirs, and successors, for the better support of the government of this island," which is the law whereupon the said information is founded ; and several clauses of the said a-t, having reference to the revenue act, passed in the said island in the year 17 --3, now expired. I have likewise considered that revenue act, and beg leave in the first place, to inform your Lordships that no proof has been laid before me of the facts contained in the said papers; and, therefore, the opaiion 1 shall ofier to your Lordships proceeds only from a supposition that those facts are re[)resented iu a true liyht. LTpon this foundation, I conceive, that the prosecution against Mr. Donovan, being for the duty charged by the act of assembly of 1724, upon rum, and not Ibr any pen- alty therel)y indicted, none of the clauses, in.serted in either of the said acts, for excluding the p(,\ver of the crown t<. grant nolle prosequi in the cases of penalties, do extend to this caae; cud, although the said duty is OP THE COLONIAL CONSTITUTIONS. 493 appropriated towards the .support of the .trovniiiient of the said ishmd, yet I apprehend his Majesty iupv pro- perly judge, upon circum.stanc3s hiid beiore hini, how far it is reasonable to permit his officer to carry on a prosecution in his Majesty's nnme, for the lecovcx-y of the said duty in a particular instance : wherefore, I am of opini(>n, that as the circumstances of this case are re- preserted in the inclosed papers, his Majesiy ,ny lawful- ly order his attorney-general for the island of Jamacia, to stay proceedings upon the said information, and to' enter a nolle prosequi to same, if such shall be hib royal pleasure. Avg. 30, 1728. p. Yorke. (20.) Mr. Fanus opinion on an act of the Ncfj York Assembly, for pre renting prosecutims hj information, as tnc'jusistent nilh the Kings prerogative. To the Right Hon. the Lords Commissioners for Trade and Plantations. My Lords ; 111 obedience to your Lordships' commands, signified to mr by Mr. Popple's letter of the iirst of May last, I have perused and considered an act passed at New York, in the year 1727, intitled ^-an act for preventing pro.se- cution by informations." The act recites, that many of his Majesty's sulyects have been lately prosecuted in the respective counties, and in th supreme court of this coljiiy, upon iU'ormation filed against them by the at- torney-general and his deputies; ihough the matters charged against tl.em have been generally trivial and incon.Hderable: therefore, it is enacted that all informa- tions filed by his Majesty's attorney -general of this col- im i H , i ■\ 'fh-'it 11 , !.i ( ' 494 OPINIONS OF EMINENT LAWYERS. ony, now (lopen(liii< piMiislinient they jusiU deserve; and wjiich, !!: iio.icx oiiLdit t.. Ire ii« speedy as possibie. Another rca.Koii against the pa.ssiug this act, nul ulii.di I beg •'J il u 496 OPINIONS OP EMINENT LAWYERS. leave to submit to your Lordships' consideration, is, that all prosecutions now depending are by this act entirely quashed and discharged. What consequence this may have to the public peace in the colony, I cannot tcU , out surely many inconveniences will arise by discharging tbf^se nroseculioiis, which I nuist suppose just, and not trivial and inconsiderable, since they have been carried on by the attorney-general, against whom there is no comphiint; which, witli su])niission, supposing there was any groinid lor the accusation, would be the most prop- er aud decent way of proceeding, rather than to attempt the restraining the prerogative of the Crown, in so ma- terial a part of it. The imposing a fine upon the attoiiiev-general, if he does not pursue tlic directions of tl'is act, is, I appre- hend m uui>ri'cc(K uted step, and a high rellection upon the honour ol ttie Crown ; for c.ni it Ix' supposed his Majesty will appoint an attorney -general, who is so i 'i- willing to do his duty, that he nuist, by the fear and dread of puuishnieut, be forced to put those laws in ex- ecution, wliich he ouirht strictly by his emi)lovment to be suppo>e(i. not only to observe hiuisell", but to see a due aud strict oli-er' ance of by others? For tliese rea- sons. 1 iun luiuibly of opinion tliis act ought to Ix; re- pealed. ./ii/i, •">. 172^^. I'han. Kank. (21.) 7 ill opinion of the .\/f mn i/ anil S >!lcifir-(r( nt'i- . al, Yor^'' nnil In l>'il. on f/r iinf auhj if. To ihf Kiglit linn, t be Coi-d< Coir.Miis.ioiiers for Trade aud riaiitatioiis. .M:!\ it please \ our liord^hips; lu ubcdicncc to your Lordships conimands, ^igniticd OF THE COLONIAL CONSTITUTIONS. 497 to us by Mr. Popple, rclbrring to ii.s ;ui act passed at New York in 1727, entitled, "an act lor preventing pros- ecutions by informations,' and directing us to give our opinion in point of law thereupon ; we have considered the said act, ami also the memorial of his Majesty's at- torney-general of New York, hereunto annexed; and are of opinion, that tiie said ac-t is a high encroachment up- on his Majesty's midoiil)ted i)rer()gativ(; of proceeding by way of information, and of dangerous conse(pience, and therefore not lit to be approved. Avfjiist 13, 1728. p. YortKi-. C. T.VLBOT. (22.) 77/c opinion of tfi, At! ^riinj-Gcncral Xoithny, concerning the prorecf/in'js in lite coui-ts of i\^ ir Ynil\ on an e-sr/uif, and an a/)p al thrri'Jrom. As to these proccH'dings depeniling on tlie writ of es- cheat, on the death of .b^-.';)b ]?aker, Vv-hicli now sf-iids on a donmrrer, i -I'l not .ict.iniined : I am of (pinion that depends on his will, for If hi' liii'h siidicientlv de- .soribed the devisees, so as they may liv Ixiiowii, thev shall take thei'clu , and pr.'veiit ihi- escheat of ins hoii>^es to the ('rown. 'Idu' ideadln-- nf Howard In the .sj (//■■ Attnrney-tleneml Xurthey^ on tlu ( villi iii'e ofjrce netjiw-. To the Right lion. lli. I.oids Coninns.sioners of Traile nnd PInntalions. 11 498 OPINIONS OF EMINENT LAWYERS, May it pleafppU\ I have considered of the enclosed act, passed at .Jamaica the 10th day of November last, entitled ''an act to prevent iiejiroes beint; evidence,, against Dorothy, the wife, and John. Thomas, and Fran- cis sons of John Williams, a free negro,'' whereby, re- citing a former act of the like nature, made in favor of the said John Williams, the fatlier, and that the said John Williams had educated his said sons in the protest- ant religion, a. .d had given them suitable education, and that he had oljtained Ity his lalxir and industry, a com-- peteiicy for his said wife and three sons; which, with their lives, might after be subject to the evidence of ne- groes, and other inlidels. it was enacted that no negro, Indian, or mulatto, should thereafter be allowed, or re- ceived to give evidence against his said wife and child- ren, in any suit or suits in any court whatsoever, or be- fore any magistrate in that island, Imt that thoy should he tried by a jury of twelve men, ;is otlii'r subjects of Great Ihitain are tried there ; and 1 do mo.st humldv certify _\ our Lordships, that by the aiuiexed allidavit of Francis Oldlield, it docs appear that the said John Wil- I'ams, bis wife and children, have all been baptised in the christian faith, and do all profess the protestant re- ligion, and that by reasiMi nfthe fidelity and integrity of the saiil .bihu Williams the fatlu-r, he obtained liis free- dom several years ago. and hi.- said wile and childrcif areaNii Iree tVum s|;. very, aii'l lliiit tbc re.ison of making tliis law is. for tli.il b\ a law of .laniaiea, cntithMl 'an ni't lor the bitter order and gnverninent of slaves," the evir llie ailniiralty, \\ith tliat aii\ie(\ uhicli the civilians iia\e always shewn for the extension of their favorite iuiisdirtuin. i { f^^F.: \ it, m . t.i 500 OPIM ;X.S OF 3MINENT LAWYERS. As to the qwrics relating to the admiralty courts in the plantations, sent to the advooate-sreneral and myself 1)} Mr. I'opple. ]Mirsuant to your Lordship.":' commands, I have considered ol' the same; and as to the juri.sdic- tion of the adiuiralty courts in Eni(land and the platan- tions, touchiiii^ olienccs committed against the laws made relating; to the plantations. Avhich are enumerated in the hegiiniin^i- ofthe act made in the 7lh and Sth of the late King William, mcnlioned in the (/uui iei^, I am of opin- ion. tl"it foi- olVcnccs af.':ainst the act oC the 12th Car. II. oh. 1^. lor eucoiuagiug ac.d increasing of shipping and navigation, liy that act. the admiralty courts in the col- onics have no jiirixliction; and the admiralty court in England, hath ju\i^^dictiou oidy where a ship is taken at sea l<)r otfcnding a'r.iin-t tliat ar-t. in whitdi case the ship is to ])e condenuied in tlic adniiralt\- as a prize. As for (.llenres against the >t;»tute of the loth Cur. II. eh. 7. for (lie cniMunigcmcnt of trade, hy that act no court of admiralty, (itlicr in ICngland or the plantations, liave any iuris(!i(iion, the >^uits hcing to he in such courts, wherein no e^soi«:n. protection, or waircr of law shall be allowed, wiiicli, hy construction, are only the courts of law. wliere only essoigns, protection, or wager of law can he allowed. The jirocceding.^ fi)r oii'-n;'c< a'j-.iinst th/ statute '1'1-r, of Car. 11. ell. I'd. for regnlatiim- tlic iilantalion trade, by til It act may he in llir ,iilinir;dly couit in Kngland, but not in the adrnirrl'N courts in tin' plantations. The -tatutc Ttli Williaui doth not i:ive anv jurisdic- tion to the admii'alty oiut in !•] igland. for anv olTenco in unlawful tradinj; to or from the p'aatatioiis. hut suits on this net in England nni~t he in the (>uccn's coiirt.'^ of rccoril at Westminster; hut procccdini:;s ma\- he in thoad- OF THE COLONIAL CONSTITUTIONS. 501 miralty or other courts in the plantations, at the election of the informer, for importiTig or exporting to or from the plantations, in any ship but such as are de.scri])od l)y that act, and manned as that . ;t directs which is, that the forfeiture may be sued for, in any court in the planta- tions generally, which include • he court of admiralty ; and the rather, because the act expre.'^sjy takes notice of the court of admiralty, as a fixed court in the planta- tions for other purposes ; and I am of opinion as to the clause, fol. 502, that it doth not concern trading in un- qualified ships, that being provided for by the former clause, but refer to the clause immediately preceding it, fol. 500, which enacts, that all ships coming into, or go- ing out of, any of the plantations, and lading dv unlading goods, and also their masters and ladings, .shall be sub- ject to the same entries, visitations, seiirchcs. penalties, and forfeitures, as to the entering, h.ding, or dischargin"' their respective ships and ladings, as ships and their la- dings, and the commanders of such .ships, are subject and liable to. in this kingdom, by virtue of an act of par- liament made in th(> Mth of Car. 11.; and also sul)ject to such other powers and authorities of the otlicers, for coUeeting and managing his Majesty's revenue, and in- specting the I'lantation trade, and lialile to such ])ains and iienalties, tMucJiiiiL' tiie importing and exjinrtiuir goods int(\ and out of the plantations, as, b\- the same last recited act. aif provi(h'd an (I H! <'fed, toiicliint:' pri hibited goods in this kingdom, Uy which claii^i- 1 am of ojiinion, that tliat act gives tlie admiralty court in the ]dantati()ns jurisdiction of ail penalties ami lorfeit- Ufcs for unlawful tiailing, eilher in derratiding the Kini;; in his cii>toms, or impni-ting into, or exputiug out of, the plaiitations, prohibited goods, and oT all iVauds in i rt !.!■ ^iif'l fe-f , ; r 502 OPINIONS OF EMINENT LAWYERS. i- i matters of trade, and offences against the acts of trade, comTiutted in tlie plantations ; and that in all the cases before-mentioned, except the trading in nnqualified ships, not manned as directed by the act of the 7th William, suit can be only in the admiralty in the plantations ; and for the excepted offences, suit may be in any court in the plantations, at the election of the informer. Part of this r/nnre Avill have a judicial determination in a case now depending in the Queen's bench, in an action of trover and conversion brouglt by . against Colonel Quarry, the judge of the admiralty in Pejuis\ Ivania, who as such in that court, condemned an luncgistereJ ship foi trading there, which Avill acquit hi in in that action, if the prosecution may be in the ad- miralty court; but if that court hath not jurisdiction of the cause, the proceedings are coram jwnjudur, and the plaintiff will recover against hiui as a wrong doer. AN' (jidi'i- of reference signifu'd to nio by Mr. I'oitpic, 1 iiave considered of the following acts, passed at ihe geiu'ral assi'nil)ly of Barba- does, in .\ugust, September, October and Novendier, 1701!, vi/; -an act to raise a levy I'or repairing the fbr- tilications and lireast-works," dated the L'litii of .Vugust, ]7"1.*; iui act I'or titling out of ships or vessels of war," dated the 27tli of August, 1702; " an act that all per.sons. F»1 OP THE COLONIAL CONSTITUTIONS. 503 both civil and military, in office, authority, and govern- ment, at the demise of the late King, shall continue un- til further order and settlement by a Governor, or her Majesty's pleasure be further known," dated the 27th of August, 1702; "an act for remittance of the duty of prize liquors," dated the 27th of August, 1702: "an act for purcl.asing a ' el of war, and fitting her out, and maintenance of prisoners," dated the 10th of September, 1702; "a supplemental act, to an act, entitled an act for purchasing a vessel of war, and fitting her out, and main- tenance of prisoners ;" as also, " a supplemental act, to an act, entitled an act for the fitting out of ships or ves- sels of war," dated the 14th of October, 1702; '■ nn act for laying an imposition on wines, and other strong li- quors, imported into this island," dated the 3d of No- vember, 1702: which laws, I conceive, are agreeable to law, and do not contain any thing prejudicial to her Maj-^ esty's royal prerogative, except the act for fitting out ships or vessels of Avar, which gives the whole prize to privateers, as well such as should be set out by private persons there, as'at the charge of the island, the perqui- sites of the admiralty not being saved; whereloie, I cannot think it fit to be approved, unless a law be first passed in that island to restrain the benefits therebv al- lowed to the captors to such privateers as shall be lilted out })y the island, and for reserving the perquisites of the lord high admiral. And as to the act^ that all per.-^ons, both civil nnd mil- itary, in office, authority, and gov(>rnment, at the demise of the late King, shall continue, &c, it is unnecessary, provision being made for continuing of ollicers in the plantations on the demi.^^e of any King or Queen of this realm, by a statute made in the lir.st year of lu-r Majes- m ^>n ! ; M= ,i 504 OPINIONS OF EMINENT LAWYERS. ':il 11 I il •* 4m. y,^ . -f Trfr-^fjw 5 ty's reign, entitled "an act for explaining a clause in ail act made at the parliament begun and holden at V/est- minster, the 22d of November, in the 7th year of the reign of our sovereign lord King William III. entitled " an r.ct for thv- better security of his Majesty's royal person and government." And as to the act for remittance of the duty of prize liquors, if that encouragement be thought fit to be given to privateers in Barl)adoes, which is not allowed them here in England, this law being perpetual, I am of opin- io is fit to be continued only for a time, for her Majes- ty s further consideration. Ocfoh'^r 22, 11Q3. Ewd. Northev.' (3.) T/'ie opinion of the Aflvo'^atc-Gcncral, Sir John Cook' , on the same jfirisdktion. Ships trading contr.try to the act of navigation (12 Car. II. c. 18.) • ic to be prosecuted, and the penalties arising thereon, to be recovered in any court of record : the words of the act are general, without a particular mention of Enulanil, or of the plantations, and include the admiralty courts of l)()th places, they being the King's courts, and consequently courts of record. Ships trading contrary to the act for encouragement of trade (!•") Car. II. c. 7.) are to be prosecuted, and the penalties aiising thereon, to bo recovered in any of his Mnjesty's courts in the plantations, or in any court of record in England, and it is certain that the admiralty court is the King's court, and was so allowed to he by all the judges under their hands, annf) 1632. In the eleventh paragraph of the statute, for preventing plant- ing tobacco in Kngland, and for regulating the plantation trade (22 and 23 Car. II. c. 2G.) it is said, that upon un- OF THE COLONIAL CONSTITUTIONS. 505 lawful importations to, or exportations from the planta- tions, one moiet)' of the several ships, and of their la- dings, shall go to the King, the other to him who shall seize and sue for the same, in any of the said plantations, in the court of the high admiral of England, or of any of his vice ad.nirals, or in an_\' court of record in England, by which tl„ jurisdiction of the hi^di court of admiralty, in England, is plainly foundec; f„s is likewise that of the admiralty courts in the plantations, which, in respect to the admiralty of England, are vice-admiralty courts^ and it is observable, that both +he admiralty courts are mentioned before the connnon law courts, as being prin- cipally intended by the makers of that statute for such proceedings, and it is further evident by the same clause, and the two which follow in that statute, that the admi- ralty jurisdiction is not so confined, but that it may hold cognizance of, and determine the olfences, though the goods are valued, and seised, on land. The three statutes above-mentioned, viz : the 12th, 15th, 22d and 23d of King Charles II. are recited in the preamble of the last act, relatinirto the plantation trade (7th and 8th William ill.), and that last act does suffi- ciently establish the admiralty jurisdiction, in oftencea against the acts of trade, in as ample a manner, and in tlie same words, as it doth the jurisdiction of the courts at Westminster-hall; and if it be objected that in those two places, it is only' said that the proceedings for the penalties and forfeitures arising from tlie oll'ences, and not for the offences themselves, shall be had in the courts of admiralty it may be answered, that the courts of Westminster have no more or other jurisdictions, for they are mentioned in the same manner as the admiral- ty courts, and not otherwise : however, the offence and (Jo -ij. 506 OPINIONS OF EMINENT LAWVcRS. !l H « the penalty is all one cause, and of the same cognizance, and are determined all at once ; for to suppose otherwise, were to make one court put in execution the decree and sentence of another, which were absurd and impractica- ble. Against the jurisdiction of the admiralty courts in the plantations, thus deduced and asserted, there is a seem- ing objection, from a clause of the aforesaid statute, 7th and 8th Gid. HI. where it is declared, that upon all suits brought in the plantations, on offences against the sev- eral acts, relating to the plantation trade, by reason of any unlawlul importations, or exportations, there shall not be any jury but of natives of England, Ireland, or the plantations, from whence it may f)e argued, because admiralty courts use no juries, they are not pro^x^r courts to try such mutters in. To whioh objection it may, amongst other things, be answered, that this clause does not in the least take away the jurisdiction, Avhich not only the same act, but several former acts of trade, li.ive given to the admiral- ty courts in the plantations, in i'a>es of unlawful impoi- tations and exportaticms ; for the directing the nature and manner of proceeding in one court, when two have the cognizance of the same matters, can, in no construc- tion, take away the power of the other; but from that clause this c!)nclusion, I conceive, may be truly and fair- ly drawn, viz : that none of the common law courts in the plantations should proceed in such cases, but where luoper jurymen may be had, .so that natives of any other places but England and Ireland and the plantations, or natives even of those places who are any way interest- ed, or who are on any other account not legally quali- fied, cannot serve on juries, and consequently no such OP THE COLONIAL CONSTITUTIONS. 507 trials can be had in those courts in the plantations where proper jurymen cannot be had; and in such cases the admiralty court, as it is always a proper court, will be theu the only court to proceed in, and determine breach- es of the acts of trade, Juli/ 23, 1702. J. Cocke. (-1.) JL . Fanr's opininn on the Adiniralty Jurisdic- tion, in the Jialtainas. To tile Ili ilty in the Bahama Islands, are comprehended within the Lords Proprietors' surrender^ I have c(Misidered of the same, and am huml)ly of opinion, upon perusal of the orii^nnal charter of the Bahama Islands, granted l.y King Clnvles II. that there are no words in that charter w liich will carry a grant of admiralty jurisdiction, ' • rights and penpiisites thereunto l)elongiiig, to s Proprietors; and, liieretbre, the Lords Propr.eicis. or any lessee under them, could never have anv leizal title or pretence thereto, under the charter. Ma>i 10, I72'.t, Fran. Fane, (••)), 'J ],e ^[/fini(>/-(niicrnl Xor/'ui/'.s' ohs-acatloU'S on .soinr (irt^ of thd Bavhadoii A-s:<'in'>lij, a-^ incansiUcnt infli tin' Adiiiii-tiltij J :. risd'ution. To the Uight Honorable the Lordd Commissioners for Trade and Plantation.?. w It If \ i I. ^- iri :# ■ a ill 508 OPINIONS OF EMINENT ',AWVE"fl. ' M Miiy it please your Lordships ; 111 obedience to your Loidship.-;' order of reference, pisrnifiod to uie hy Mr. Pop})[o, I Imvc (Mmsidered of the f()ll(*\\ iiij:' Mots. passed at an assemUiy of Jiarbadoes, from the 17th of November, ITOl.tofhr K^th of iMareh. 1701- 2, viz: -an net for the |)ayn)ent oi the; sum of £2000 .sterliuj-- (" his exeellency Kalph Lord Grey, baron of Warke, i^e.'' (hited 17tli November, 1701- -'an act to prevent Ireemeii, viiiie servants, ne;;roes, ai d other slave-. I unninj;- from this island in shallops, boats, and other vessels." dated 17th November, 1701; "anactf r layinu' an imposition on wines and other strong li(puns imported to '.his island," dated 17th November, 1701; '•an act tor the ■•iieDurairement of white servants, and to ascertain th' ir allowance oi provisions and (dothes," d.ated 17th Novemiier. 17l a war," .|ai'd. and to prevent and puiii-h the cliiidcstinc and illegal detinue of them, d; ted Isth > ovemhcr 17<>l; "an act to encourage tin- inhabitants of this is- liiud to become owners of vesseh ' dated |Sth Novem- ber, 1701 ; "an jud to revive and e .nlinue an act, enti- tled, an net to prohibit and hinder tlie inluibitant« of OF THE COLONIAL CONSTITITTIONS. 509 this island to eniplov their negroes and other slaves in huving and selling,'' dated 23d December. 1701; "an act to raise and provide a further strength (jf laborers to clear the trenches and repair the l)reast-\vorks and fortifications of this island," dated liod Januaiy, 1701-2 ; " a.i act to raise ami provide a further strength of la- borers to clear the t'-enchcs and repair the I>ieast-v.()rk3 and foriification.'-' of this island," dated Kith May. 1701- 2 : which laws i conceive are agreeably to biw, and do not contain any thing prejudicial to lier Majesty's pre- rogativ save that as to th(^ act. entitled • an act to pre- vent tV icn, "lite .servants, negroes, and other slaves, running fmni ti i islan 1, in shallops, boats, and other vessels," pvliicl: i.i i-xpired also) I am ol'o])inion it mak- ing stealing or laldiu: away any boat telcny, the di? junc- tive (or) .-houid liave been the CDpulative {(iiul), for w.mt of which, taking away a boat, without stealing, is n.ade fel')ny ; and tiie power to kill ■.nm-aways i^ unreasona- ble, being inchniec! besides slaves. And exci'pt tin- "act lor ratilyi'ig, tters patent, grants, -Ivases. SiC without restraining it to such wheri' the j;;.,-isessi(.,i Imth been with the grant, for want ol wlueh -t will revive dc- fecti ■(• grant ', isnder whic'i there ne\er was mii\' enjoy- iiieiit and although there is a proviso ii> tlie jic aeamst reviving any letters paleul, iS;e that have b( eu made void b\ acts, judgments, or otluM' h -il nays \ d del'ect- ive g'antr, uudt>r wliieu no eu|oyme'i; may have beeti, if not ]rj:ivily made void, of which sort there mav t;e many, will be ruvived : iioside.n, it i,s muetiMoiiablu to V , . t ' f U i::. I 510 OPINIONS OF EMINENT LAWYERS. make defoptivo grants good, wliero for those defects sub- seciuent 'grants have hiHn\, and .such are made, good by this act, it uiakhig the defective grants good a'cainst all persons claiming under tiie Crown. And except the 'act to e.icourage privateers, in case of a war," as to v, Inch I am of opinion that its giving for ever hereafter to privateeis the wliole prizes to be taken l)y them, intrenches on her Majesty's prerogative, and her declaration in favor of caj)tors, and gives away the penpiisites belonging to the admiralty, and disables her Maji'sly's men of war to pi-ess, on the most urgent occasions, any seamen out of privateers, which is un- doubtedly in the power of the loril high admiral to do, and is lit to be governed by his direction ; and therefore I think it lit the same be repealed. ^^MJi ( h / ill r, iTl>i». Ewi>. NoirruEV. (li ) J/'-. H'v/'.s np/'iiio/i (»i th>: Adiiiindtij Jurisdic- tion, ill the I'litiitiiliriii^. To tlie I'.ight ilon. the Lords Commissioners of Trade and Plantations. M}' Lords ; In obetruncc to \our Lordships' connnands, I have jH'ruM'd ami con.-idi'red two memorials from the lords of the admirally, /niicxed to Mr. Secretary Poj)|)le's letter of the .'itli of May he^t, and as \oin* Lordships connnand me to be sery explicit lu my answer, I hope \oiir Lord- fihips will lorgi\f tlie length of it. \\\ tlie lifty-fourlii articli' of his Majesty's instructions to tlje governors ol the Amern'au plantations, tlie\ are di'erteil, 'thMt in e;me jiii\ gooils. iuoue\ or otliei' es- tate of pirulO!<, or piratically taken, rhal! be bi iught iu. or found, within the limits of their respective gover - i, -I r OF THE COLONl.U, CONSTITUTIONS. 511 ments, or taken on board any nhips, or vessels, they do cause the same to be seized and secured, until they shall have given his Majesty an aoeount thereof and received his pleasure concerning the disposal thereof; but that in case such goods, or any part of them, are perishable, the same shall be publicly sold and disposed of and the produce in like manner secured till his Majesty's further orders:" which instructions the lords of the "admiralty desire may be annulled, and never inserted for the fu- ture in any instructions to be given to the governors of the plantatio.is, upon a sui.position that the governors are sufficiently authorized and instructed how to govern themselves in those cases which are the subject matter of this instruction, by the patents issuing out of the high ' ourt of mhniralty, by whi,.h they are c..nstitute.l admir- als within their respective governments. This instruc- tion, MS your h.rdships will be plea.se.l to ob..erve. relates to two things, that is. first, to the goods of pirates ; and w'condly. to goods piratically taken: as there .seems to' be a very material diflerence between them, 1 shall con- sider them singlv. The common law of Fnghuid is the .•onunon law of the plantations, and all st.itutes. in albrmance ,>f the common law, pa.ssed in England, antecedent to the set- tlement of any colony, are in force in that colnnv. un- less there is some private act to the c ' t i\ ■ t IN ii K 111 512 OPINIONS OF EMINENT LAWYERS. chief, since, by thoir law, no man can be condemned to death unless he either conle.sses his crime or bu convict- ed by Avitnesses who saw hinv conmiit the fact, by which means many ohondeis escape punishment ; and there- fore, to remedy this mischief, it was en.acted by the stat- ute of the eight and twentieth of Henry the Eighth, cbapter the hlteenth, " that all trea.sons, murders, robbe- ries, &c. committed by jjirates on the high .-^eas, or in any other jilace where the admiral pretends jurisdiction, phall be incjuired and tried in such counties within the realm, as shall be limited by the King's commission, in like manner as if such oftences were done at land ; and that sucli comnii -on the statute. Now if this statute was of force in the West Indies, no |>er.son could be convicted there without a special eonum-sion; and if it \v;is not the proceedings nnist have been alt<>» gelher at the ad thcie, if not wrirse. tK..n they wer*» at hi»mc, Udi»rv the iriaking «»f that statute. OF THE COLONIAL CONBTITDTIONS. 613 By the preamble to the statute of the eleventh and tweirth of William the Third, chapter the seventh it not only appears that ever since the making the statute ol Henry the Eighth, the trial of pirates, &c. before the admiral, &c. singly, by the civil law, had been altogeth- er disused and laid aside; but also that the statute of Henry the Eighth did not extend to the West Indies • and therefore it is enacted, "that all piracies, felonies and robberies, conunitted in or upon the sea, or in anv haven, &c. where the admiral has jurisdiction, may be tried'at sea, or upon the land, in any of his Majesty'8 islands, plantations, ,^c. by commission under the great .seal of England, or admiralty seal, &c.' which commis- sioners, though they are directed to proceed acconling to the course of the admiralty, do not yet derive any part of their autlmrity from our high court of admiralty, but only from tlieir spec.tl commissions issued for that purpose. From wJk.i I have already laid before vour Lordships, I think it evident that no trial of piratt^s can be in the West Indi.'s liad before the admiralty Courts, qim such, unless their admiralty judges will venture to proceed by the civil law singly ; for they cannot be aided by any statutes, since (b.> statute of Henry the Eighth does not extend to the West indies, and that of King William re- lates only to those .special commissions, which special oom.iissiims, founded upon this la.st mentioned statute, are constj.ntly granted to the governors of the resjK^ctivo' provinces, who, consequently, together with such other persons as are joined with them in the commission, are the only court of judicature (not (^ua vice admirals, but e not the goods of the pirates, but to be only piratically taken from oth- er proprietors, it must be observed, that there can be no right to the custody of such g(K)ds till there is an adju- dication of the piracy, which, in the West Indies, can 1x5 obtai.ied only in a court commissioned according to the above-ment. )TT^d statutt^s. And the persons (f)e they who they will) who have the custmly of the go(xls, are only trustees, in the first place for tl « benefit of the right owners, and in case of .on claim, for the crown; for by the art of piracy, the property is not chan'.ed, but still remains in the original OP THE COLONIAL CONSTITUTIONS, 515 owner, and therefore it is provided by the statute of the seven and twentieth of Edward the Third, section second and ,se /enteenth, in what manner, and by what officers, such goods shall be restored. "If a merchant lose his goods at sea by piracy (these are the words of the statute), and they afterwards come to land, if he can make proof that they are his goods, they shall be re- stored to him in places guildable by the king's n-^cers and six men of the country, and in other places, by the lords there, or their officers, and six men of the country." Since, therefore, there can be no right (properly speak- ing) in any person to have the custody of the goods, either of pirates, or piratically t^iken, until the pirn-y it- self be adjudged, and no adjudication can be had, but in a court conmiissioned in the above-mentioned manner, and since the custody of goods must be in the court where tli' judgment is pronounced, unless there be some particular provi-^ion to the contrary, and since the gov- iTuor iu every province, by virtue of his special commis- sion, presides in every such court, it follows that he must take care of (and perhaps answer for) the persons to whose custody tiie above-mentioned goods may bo com- iiiitl.'.l For these rea.sons, my lords, I am humbly of oj)mijn, that the instruction is very properly given, and that it is not fit it should be repealed. My Lords ; The second memorial presented by the Lords of the a(biiiiiilty to his Majesty in council, and by your Lord- sliips relerred to me, contains a complaint of the admir- alty courts against the frcvjuent encroachments which tlicy aflinu the provincial judges make upon his Majes- ty's authority and the admiralty jurisdiction, by dis- charging persons imprisoned by the admiralty for debts t:\ s-ti f i ; Km l: m^ 516 OPINIONS OP EMINENT LAWYERS. and penalties due to his Majesty, and by granting pro- hibitions to the proceedings in their courts : they pray, therefore, in order to redress this grievance, that his Majesty woald be pleased to command the governors of the several colonies, to give all countenance and assist- ance to the judges and officers of the admiralty, and also to restrain the provincial judges from interrupting the proceediiigs of their courts. This memorial from the lords of the admiralty was undoubtedly occasioned by the letters of Mr. Smith, ad- vocate for the court of admiralty in New England, and the representation of Mr. Menzies, judge of admiralty in the Massachusetts Bry ; and upon perusal of them both, your Lordships will plainly see that the foundation of this dispute is nothing but the desire which the admir- alty judges have of extending their jurisdiction in the West Indies: for the first article of which Mr. Menzies complains is, not that prohibitions have been directed to their admiralty courts, in cases in wln'ch by law they ought not to have been granted, but that any prohibi- tions were granted at all ; and seems to insinuate very plainly, that in case their admiralty there should exceed its jurisdiction, the subj.^-^t has no other remedy than by appeal to the high court of admiralty at home. I shall (>iave leave therefore of \ our Lordsliip to consider this question concerning prohibitions upon the foot of those iust'ipces which are alleged by the above mentioned gentlemen, of the opju-e.ssions they lie under from the common law courts; but I .shall lir.-^t trouble your Lord- ships with a few words concerning prohibitions in gen- eral. That the coMinon law was always jealous of the encroachments of the civil law is ciMtain, and wherever the common law prevails, this jealousy must necessarily tm OF THE COLONIAL CONSTITUTIONS. 517 accompany it. J'rohibitions have been the remedy con- stantly applied to prevent these encroachments, which have always issued out of the superior courts of the common law, by the laws of New England, confirmed by the Crown ; (and I mentioned New England particu- larly, because the disputes which have happened be- tween the judges of both laws in that province have given occasion to the present question) there are courts established in that colony, and invested with the same powers that are respectively executed by the courts of King's bench, common pleas, and exchequer, in Great Britain, and consequently a power of granting prohibi- tions may legally be executed by them. Nor is it a sufficient answer to insinuate that the statutes by which the admiralty jurisdiction in England is limited and con- fined have no relation to the plantati^uis: for as the statutes of thirteenth of Richard the Second, chapter the fifth, the fifteenth of Richard the Second, chapter the third, the second of Henry the Fourth, chapter the eleventh, and tvventy-seventh of Elizabetli, chapter the eleventh, arc not introductive of new laws, but only de- claratory of wliat the cummon law was before, I am of opinion that they are of force even in the planUitions ; for let an Englishman go whereever he will, he carries as much of law and liberty with him as the nature of things will bear; but to shew that it is impossible a power of granting prohibitions should not be, wherever the connnou law extended, your Lordships will need only to recollect not only tlio inconvenient but absurd consequences that would follow in case it were not so; for should the conn, of admiralty in New England take upon them to hold plea of Ireehold, or to take cogni- zance uf actions of debt, &c. what remedy has the sub- ,lf| : life I it:1:rh i 518 OPINIONS OP EMINENT LAWYERS. I •i i m 1 ject to vindicate thut right to tliat inheritance which he has in being judged by the common law. In New England, if tliere is no power of granting prohibitions, remedy he has none, and consequently the benefit of the common law nuist, in the colonies, be enjoyed by none but those who have wealth sullicient to support frequent appeals to Great Britain. But even in sucii case, how is he relieved? to the King in council he cannot appeal, ■ 1- that is irregular; from the sentence, therefore, of a court of vice admiralty abroad, he must apply to the court of high admiralty at home. I submit it to your Lordships, to determine how far it is absurd to suppose the law should allbrd the sul)ject no other remedy against the exorbitances of one admiralty- court, than by send- ing him to another. On the other hand, my Lords, if it be granted that the conmion law courts in the })hintations have a power of granting prohibitions, though it should be supposed that (as very likely they often do) they exceed their bounds, and i.ssue prohibations in cases where by law they ought not, so that the subject may possibly be aggrieved by a cause being substracted from the admi- ralty jurisdiction, to which it was proper, and drawn to that of the common law, yet there is an adequate remedy always ready; for by an api)i'al to his Majesty, from whom both jurisdictions flow, be may obtain redress against any grievance iir may lie under by reason of any judgment which any court of conumui law i.i the plantations can pronounce. I shall not ti'oiibic vour Lordships with anv thinw more concerning ])r(ihibitions in general, l)ut shall beg leave to add ;i few words concerning that .jurisdictiou which I see is claimed by the vice admiralty judges in OF THE COLONIAL CONSTTTUTIONS, 519 America, by virtue of tlie acts of trade and naviga- tion, and also concerning the instances, which are given by the above mentioned West Indian civilians, of the oppressions they lie under from the common law courts. In respect to the acts of trade and navigation, I own myself at a lo^s s<, nmch ns to guess upon which of them It IS that the admiralty judges in the West Indies would found an increase of their jurisdiction, for there is not one smgle word in them whicli can be construed so as to give them, there, a grenter power than is exercised by the high court of admiralty at home. But upon these acts, I would beg leave to observe two particulars, the first of which is. that though the term of hi.s Majesty's courts m general does undoubtedlv comprehend the courts of admiralty, yet whenever it is enacted (as happens, I thiuk, to be the case in everv one of those acts,) that any penalty shall be recovered in any of h.s Majesty\s courts, by any per.son who will seize, in- form, or sue lor the same, vhercin no cswu,n. protection or wnga- of law shall hr- alhwq/, the admiralty is abso- lutely excluded, and cannot possiblv have any jurisdic- tion, becau.se thoso terms by which the courts are de scnbed are perfo .- peculiar to the common law. and foreign to that law by widch the courts of admiralty must proceed ; secondlv. that whenev.r .ny prosecution IS directed to be had ip. any court of record, the ad- miralty .juri.sdiction is utterly o.vcluded, since, by law they are not a cf)iirt of ro(V)rd. ' I .'^hall not need to trouble your Lordships with en- umerating the several pas.sages in the acts of trade and navigation, snice the application of these two general rules (which I take to !,e law) will resolve almost any quest.on wbich^cnn arise upon the peru.sal of them- i ''i i \ I '• 620 OPINIONS OP EMINENT LAWYERS. and, therefore, ail that now remains for me to do, in or- der to complete my obedience to your Lordsliips' com- mands, is brioHy to consider the facts alleged by Mr. Smith and Menzics, and the mothrd of remedying their supposed grievances, which the Lo'ds of the admiralty pray of his Majesty. The first fact which they mention anK)unts to no more than this : that two persons, named John Oultol and Cornelius Waldall, did, l)y public placards, &c, insult and defy the jurisdiction of the courts of admiralty, and upon a libel being exhibited against them in that court, they were lined. The judge of common law, upon con- sideration of this case, granted a prohibition, which the civilians there, it seems, think to b" illegal; but I must own myself to be of another opinion, and that the judges could not refuse it upoa n .ion. The most that a court of adnuralty i ■ do, is w- hue and impri.son for a contempt in the face of the courr. But there can be no proceedings ])efore them for any thing that is done out of court, and I mak^ no doubt but our courts in "Westminster Hall would have granted a prohibition in the same case. 2. A second complaint is, that an action of trover Was 1)rought for a ship after it had been sold, by decree of the admiralty court, which might pc-isi'')!y be very just, if the whole case had been stated. 3. A third ( omplaint is, that a prohibitior • ,s f^rant- ed upon a libel being exhibited in the admiralty court, for transporting of wool, contrary to the acts of naviga- tion ; which I conceive to have been . .'gu:arly i: led, since ofTences of that kind are directed to be tried in courts of record, and consequently the admiralty cun have nothing to do with them. OP THE COLONIAL CONSTITUTIOVS. 521 ^ In tlit'se particular.^, 1 am of opinion that thoir com- ^' ' ' =^''^' "'^i^ ^^'^'11 f,'i'oun(led; but then, as to thoir be- ing di.tiiibed in the exerci.so of the admiralty jurisdict- •'• • of what is, „r is not, prize, tliey certainly are in the ' ' to complain, and I douljt not but vou'r Lordships A. think that it is the duty of the governors to support .a ill it by all means lawful, and it they are ne-li-ent ui so ,i,.in- his Majesty s order for that purpuseVould uiHu)ul,tedly make ihem careful for to doit lur tlie time to r.unw, which brings me to the end of this l,,ni. rq.ort with which yourLordship- have been trouoled" The lords of the admiralty pray that his Majesiv would l,o pleased to order the governors to restrain tiie pnnincial judges from interrupting- the proceedings of the courts of admiralty; by which, if they mean that the judges should be hindered Irom granting prohibitions, 1 cannot e.MKeive how they can be relieve.l in the manner they propose; for if the prohibitions are legally granted, no order can authorize him to hinder them| and if t'hey are not, the proper remedy is by the api)eai of the party •■oncerned. Dut to conclude, if your Lordships, upon H"|"u-y into the firt, should f,nd, as in all probability the fact as to New England is. that iiie i)eoj.ie there do under a pretence of law attempt to disturb ami. perhaps, to banish from that province the due exercise uf an ad- miralty jurisdiction, derived moi'e nun iiately from the crown than that of tiicir own c.urts, I am humblv of ooinion that the proporest remed.\ the admiralty can apply for, is, that a bill mav ! e t>rougiit into parliament next session for (iiat purpose, by which tiie manner of trying piracies, and tiie exer.'ise of the admiralty juris- diction l<.r tiie future, may be established and red ed to certainty. / f »l . t ■If ■fi Jti/ic I'M, 1720. IX' Id 522 OPINMONS CF EMINENT LAWYER' r^p* (7.) Mr. Str(tl)an'-s opinion on fhi: poircr of cnJlccting admira^t;i duCs, in Jh;rmnda. I ha perused the extract of a letter from Colonel Hope, Governor of iJe.inuda, tof^cthcr with his eommis- sion of vice-admiral, a also the copy of a commis.sion from the receiver-general of the rigiils and perquisites of the admiralty and from the solicitor and c(nnpomplaint, in his ;ifor(\said letter, 1 am of opiniiMi thai Ihf v'olonel 'i;is no liuht tn the 'Iik^s and pcnjuisites of the iidiuiraity. ■\vliich may accrue ■within the jurisdiction of his vice-admindty, to retain fliem to his own use. altli-High perhaps it mny he true tli.it iii-^ jircdi'cessors in that irovenimcni may have I'li- ioNcd till' same witlioiit v\v\ lia\ inn" a.'c nimtcd tor Ihciii. A'ii'(>-admiral-^ arc indeed empoweicd iiy tlu'ir .'om- mission to co]!e(>t and rceive all diic< and jieiipiisites of the adiniralt\ \vit!iiii ti.eir respeetive jurisdictions; hut they ouLiht t > aeeount for 'he -aiiii- to the lord^ <'ommis- pioner-^, lor cxecutini; the othee of Iiii:li admiral, or to sueii otliei person as tliey -liili think lit !o a|>poiiit for that piirpoHC, for the n.-e and behoof d' tlie Crown. So that, a' (lie lord- commis'iioners of th ■ admiralty liave a riirlit to e.ill all viec-'dndrals to areomit for sucii dues ami peiipiisitcs of lh'> admiraltv as they -hall have re- ceived wilbin their res^neetive jurisdictiops, they may ap- point proper persons to take and reccivi' those accomits from the vice-admirals. Hut I conceive that the oonnnission jjranted by the roceivor-ponerai. of (he rights ,inu penpii.sites oftlie ad miralty, and the ,sulicit^)r and comptroller of the same, to OF THE COLONIAL CONSTITUTIONS. 523 Robert Dinwiddle PJsq. of Bermuda, is not to ho warrant m law, tfio same bein- an encroachment on the i)ower3 actually vested in Colonel Hoikj, by 1 ,s patent of vice- admiral; for the power given to Mr. Dinwiddie by his commi.ssi()n, is not to take and receive an account of the Colonel a,^ vice-admiral of that district, of m hat dues and peniulsites of admiralty may have come in his hands or po.s.se.<5sion. which perhaps mi-ht have been ju^fitiahle; l)ut he iii thereby authorized to recover, seize, collect,' and receive, all such dues and p-npiisites ol the admir- ftlty, of. and from, all and every person and i)ersons what.soever: wherea^ the vice-ant on the vice adini.al s pnn n- i,< vested in him by bis p-tei't. (lie ,ame cannot m law be juvtilied and nntrl • to be revokeil. Ji<(tf2i\. \rs.\. Wim.. SnuMA.v. (R) 7Ii<' ophn'on or lln Ait^tnnj ami Stlicit ir-Oemr- al, )'nL,iih/ W.ar./.nit f/i' trial foi (t /,nird more sail, whence ;i matrons ,,f .iam.- s Fort, susju-tin.-r she had done something irre,-i iir, (a^ they olten d- in this part of the -vorld, oiu" alxuit twehc months a-o. attempting to carry away rustom-house oHicer.) find a shot into her when sho was aiM)ut two niile^ ofV, which happeued, uulortuiiatcly. ti. kill the mate, and woundeit another man. Tlu. \,..m.1 i.,, liately ivturiicd into jx.it, and a< soon a- the master iutoinicd lue of il, I in.MiIivd into the lact.unnn whirl, | r,,iiud >lic had not |.ul up her siir. nal. the niiiM.r cniiiplainiui:- it wa^ unt a proper >i':nal. hein- a tarpaulin-- hei-lcd up,,n tli.. lla->tati . ;ind, llauiuh I I'onnd Mich >i-naU h^i.l 1 n >nuie(ime< -i\cn and liad ''••••11 I'Wl lip- ii>'Veillu'l,-> a. I ll„,„.;|,l it a ver;. iuipi^p- '•'■ '""•■ '''!■" "'"'l'' llli-lll !'<• Ilo >ur|, piTcedeiits |nr tllC ruture, I suspended the .iiptaiu --t the t.at for ■..me lime: However, if the ma>lei- nf tlie vessel had not likrd ilic Mgnal, he onglit not In have gone under sad lill Ur had got another, and onghi l„ have bn»ught t.. upon llie inrfH liring. J/u iii^yirulf;,, at p,y.mU. Hi, umln; /v to hme whtt/ier, aw/ ir/urc, t/i<> nuUnm t'lut Jirctl tl,r s/mt from Jamxa'^Fort /> to he tnal. ot' wlutt rovrt ran tah vo,jni- zance of it. The person ih.ii was kill..,! I.y „ j^i,n from the 8hore,vva.>« upon the high seas tw,. miiei ofl' of the Bborc, wliere, I appnhend, my juriHdieti<.n does not ex- 0. .E COLONIAI. CONSTITUTIONS. 525 teiKl, ami his xMaje.stys attornoy-genoval horc is of the same opinion.'' We are of opinion, that the inatroj<.s who fned the shot cannot he tried lor the death of the mate in any court of eommon hiw, hut that he ouiriit to h- ried for the same either in the court of aihniralt.v at iiarhadoes, or by special eonnnission under statute ol' llth and 12th W. 3. cap. 7 which is now the most known and usual method of proceeding in ca.ses of felonies done upon the sea in those parts. April 17, 1725. . p YoKKE. C. Wkuju. ^ (0.)^ Tu: npminn nf iho Advoruic, Allurnoj. aud Solh- itor-G'e/oia/. i/i \li\\. on the samf point. ,, ,, Whitehall, Nov. 5, 17G1. C.ontlemen; I am dire,(,.,{ hy the Lords Commissioners for Trade nnd Plantations, (o send y.u. the iuclos(.l copies of a h'tt.'r, which their Lordships have received from the '"■nt,.nant-L..,v,.n.ur of N\mv York. an.I of m .vpoit ma.io to him l.\ r,„n,uivMon.Ms, appoint...! hv a sp<.cial com- mi.sMon f..r tl,.. trial of the nia^l.T. uv.xw. a„d s..v..ral wf tlie .-rew ..f a privateer, char-..,! wifh tl... mu-.l..,- „f son. > men lu'lonirinir to his .Majesty's slop W in..|„.ster, committed within a hay of that provinc.v I nm fmlher .lirected to acpiaiut _\oii. Ih;it the liwof New York up,.n u hi.di th.. ..,„iir.iis>ion •;.. flie iriul of these persons was fo.iM.l...f was r.p..,.!.,! hv n. .ior in council of 5(li of S.-itcmliiT. I ,"(1(1. Ill .!.. .•rat ion of which, and of the statutes of Sreat Hrltain Ahi.h have reference to a.imirally jurisdiction, a .l-M.i.t has wcur.ed to their Lordships, -.hcther then .. in the col- ony of New York, or in any of ho. of hi.s Majostv'.s colo- L 1 f 526 OPINIONS OF EMINENT LAWYERS. nies in Americn. (unless In laws which may have been passed in the said colonies), any sufficient authority for the trial and pnnislnnont of nnirder committed upon the seas within the admiralty jurisdiction in the said colo- nies; and, therefore, their Lordships desire the favor of your opinion upon the f )ll(nvinu- tpiestions, as soon as conveniently may he. to the end that if there should be a want ot'snch ant' ority. ^ome remedy may be provided as soon as pt)ssihle. (^iK'oticii Isi. — Does the act of the 28th of Henry VIII. cap. 1'). entitled foi- pirat"..^, (beinj; passed before tlie establisliinent of any of the Htitish coloni(>s,) extend to the said colonies: and if it ih)v>. how are the reifula- tions therein set down to l>e executed ' Wo are of opinidn, that the statute 28 Henry VIII. does e.\tend t<> the e;ise of iiiir.-ilil ( ic'irire 1, cap. I I th, entitled ■ an ai ■ for t lie further preventing robbery, burjihirv, &c." contain sulli- cieijt authority for the trial and ,.uulalju?"nt of [lersons puilly of murder upon the seas or waters within the ad- miralty jurisdiction in the plantations ' We are of opinion that neitl er ol the acts of parlia- ment mentioned in this (jku •■ were intended to afl'ect OF THE COLONIAL CONSTITUTIONS. 527 the case of jnurders. Thov reluto merely to such Telo- nies as are equal, or inferior, to the species particularly expressed* Qjicstion 3d.— If the act of Henry VIII. cap. 15, does not extend to America, and neither the act of the llth and 12th of William III. cap. 7th, nor the 7th section of the act of the Mh of Ooorpc I. cap. J Jth, do contain sufficient authority for the trial and punishment of per- sons guilty of nuuder iip.,u the , Chilton, und Rau'Iin, ,.-, f/,f fnal of juiuttis there. May it ])lcase your I']\cclli'n(\ We are very sensible lliat his late Majestv. King Wil- liam, was pleased to send a commissic.n to this i.slantl for trial of pirates, diiected to the Lord (iiey. then (Joveru- or, the nu'udiers of the coinicil juxi ions gnintt'd to the i.oid Civv. late (lov- ernor of this island, ceased, and, tiiat if Iku- Majesty had thought lit to have contiiuied the commission for tii;d of pirates, a commission woulil then have been grantc.l to yoi! for that purpose, as well as one to l.c (^jvcrnor. and aiiotlu'r to be vice-admiral: and. thcrciorc, we tliou'dit It was not prudent and safr Ibr your Excellency to di- rect any prosecution on tiiiit commi.-sjou ilirrcted to the Lord (irey, .^c. for ti-ial of pirates, where the lives of many persojis might be coucenied. eouHdei'lug also, ihju his late Miijesty's conimi.-^sion albr.'said Wii- direrted to several menibeis of tiie council, some wiuTeni' were dead before the granting of the said ••oiuiui-sioii aud maiiv niori- now dead and gone o|f this i>lanil ; so tliiit it would have been ver\ diilicult io have coin ened |)ei>ons enoui^h to make a si. Hi, •lent ,/><,>,■/>/,/. accoidin- (o the appoint- ment of the said coiiiiiii-si.,11. The names (,f the .said persons, that an' citiier dead, or ^onc- o|f are a- lolf-ws: the Eord (Jrey now in England; Edward ('raiileiid EsiJ. dead; liicliard Sailer Es.pdea.l; (ieorge ,\iidrews E.sij. dead; John Ihomley E^o .M)ine years past -ritlcd in England: I'atriek Meiii Em, ,„.w In Eii-!aii (/nar.' W — \\ bctlicr the persons wjio have committed any robberies, or piracies, or any otiiers. Ity that title can hold the n)oniesand etri'clsthev mav l)eso possessed of, and not liable to be pro.secuted for tliem \ Qiiare 1.— \\ lu'ther. if any persons having notice of this pnudaiuation. ^hoidd, !)ctwecn such notice and the oth of .lauuary next, commit aiiv juracies or ruijbcries, are entitled to the benefit of it? To the Right Hon. the Lords Commissioners fur Trade and Plantations. 68 ! i^} 530 OPINIONS OF EMINENT LAWYERS. May it please your Lordships; In obedience to your Lordships' commands, signified to us by Mr. Popple, we have considered of the annexed qucfries, proposed, to us by your Lordships; and as to the first grime, "whether the proclamation is a full and sufficient pardon to any persons who may have com- mitted piracies and rol^beries upon the high seas in America, within the time therein mentioned, or, if not, what steps nnist be taken to obtain it of the governors of Ameri(;a,'' we are of opinion, that the proclamation does not contain a pardon of piracy, but only his Majes- ty's gracious pronn'so to grant ]Mrates such pardon on the terms mentioned in the proclamation, on which eve- ry subject may safely rely ; l)ut, that it will be reasona- ble for his Majesty to give instructions to his governors in America, to grant tlie persons surrendering them- pclves acpording to the terms of such proclaniatiim, his Maje.'ity's most gracious pardon for piracies and robberies on the high seas. As to the second qimrc, ■' whether, by this proclama- tion, murders committed by such [>irates are pardoned," we are of opinion, that, whore tlie iimrder is cimimitted iy tlu' piracy, it was his Majesty's intention to pardon the murder so conunilted, ami, tliat, therefore, it may be rea,soiial)le, in the instructions to his Majestv's gov- ernors, to direct them to iustM't in the panlons by them to lie passed, of the ]>ira('ies and r(il)l)eries eonnnitted on the high seas, a jiardon of all nuirders eonnnitted in the same. As to the third yf/i-z/v, '' wliether tliC persons who have committed any robberies, or piracies, or any (^ther by that titU', can hold tlie monies and lo the proper goods of OF THE COLONIAL CONSTITUTIONS. 531 the pirates, they being pardoned, the same will not be forfeited, but, as to the goods of other persons which they have taken unlawfully from them, the property thereof by such taking is not altered ; but the owners, notwithstanding any pardon, may retake them, or they may recover the same by an action to be brought against the robber for the same. And as to the fourth qua re, " whether, if any persons having notice of this proclamation, should, between such notice and the 5tli ul" January next, commit any pira- cies or robberies, are entitled to the benefit of it, we are of opinion, that there is no exception of any notice in the proclamation, and his Majesty has been pleased to give his' royal promise, which hi- will never Ijreak, to pardon pirates surrendering themselves. All piracies com- . mitted, or to be conuuitted, before the said 5th day of January, and for j)reventing the mischiefs hinted at in tills (jHu'i-r. his Majesty's oflicers are to be diligent in ap- prehending all pirates, for his Majesty has not been plca<si(lered of the annexed petition of Peter Viin Bell, praying the liberty of appeal ! -^ • I ' \^ »I1 532 OPINIONS OF EMINENT LAWYERS. to her Majesty in council, from a sentence pronounced in tlie admiralty court of Noviis. And am of opinion, if that court was held under the Inte King's comniissiow for governing the Leeward Islands, as the petitioner takes it to be, alleging that the president and council liad power only to appoint, but not to sit themselves as a court of admiralty ; or, if the sentence was given by the president and council of Nevis, as -the council there, in both cases, the api>eal ought to be to her Majesty in council ; but if the president and council held a court of admiralty, by authority derived from the admiralty of England, the appeal is to be to the court of admiralty in England ; and so it was lately determined by her Majes- ty in council. 2Iay 23, 1704. Edw. Northev. (13.) The opinion of the Advocate-General, Sir iVa- th'iniel L'o>/(/, on the same subject. My Lords; In further obedience about the Eagle ]>rigantiue, con- demned at New York, and appealed upon hither: I find that the appellants have thought fit to drop such appeal, and they proceed no further; s(j the condemnation stands. Not but that the appellants might have re-heard the cause here, had they thought fit. For. by law, appeals do lie (Voiu the aduiiralty courts in the plantations, to the lord high-admiral of (Jreat J5i-itain, in the high court of admiralty of England, in (■(iiiiiuon maritime causes. As in causes of prize, j.roperly, as taken Jure helli, to the lonls of tlu> council, us commissioners {"or appeals, in causes of prize, by the American act. Marc/i 13, 1715. Natw. Llovd. OP THE COLONIAL CONSTITUTIONS. 533 (14.) 2he Advocate-General, Sir John CooUn's amnion on Ihe ■S'izurc of a Spanish hrigantinc, on t?ie high seas, by an unc:jin,nis-'sioncd vessel. My Lords ; Til obedience to your Lordships' commands, in Mr. Popple's letter of the 2oth of February, I have consider- ed the proceedings and merits of the seizure of the Span- ish brigantine therein mentioned, and am of opinion, that this matter ought to be communicated to the lord hiL'h- admiral, that directions may issue to the proper ofFi opinion ef the Attorney-General, Raymond, on the heads of a pe.tent for carfying on the fishei-y in ITl'l. To the Right Hon. the Lords Commissioners for Trade and Plantations. May it ]»leasL' vour Lordships; In obedience to your Lordships conmiands, signified tome l)y Mr. Po])ple. the 2Gth of .luly last, to send my opinion, in [)oiiit of law, upon the draft of heads of a charter, I'or incorporating Sir Robert Sinclair and oth- ers, for the bettor carrying on the fishing trade in North Britain, lit reuith sent back to your Lordsliips, I have considered thereof iind as to Nos. 1, 2, and 3, I have no objection ; as to Xo. 4, I should think it proper that the elections on avuidonces, in case of death or disqualifica- \\\ ill HI IMAGE EVALUATION TEST TARGET (MT-3) W ^ ^0 o % '«< u. % €^^ 1.0 I.I 2.5 2.2 2.0 '25 1.4 1^ ^ — 6" — ^ /.^ /,. >> y^ ^^ c;^] Photoi^cipliic Sciences Corporation n WIST MAIN STRUT MfBSTH N Y I4}*0 (7161 •77-450< l^< '^ *^' . 534 OPINIONS OF EMINENT LAWYERS. tiou, sliould bo appointed to be made within a certain time, and not left entirely to the appointment of the di- rector.«i; wliich may possibly hereafter introduce incon- veniences. I should submit it likewise to your Lord- ships, whether it would not be proper to direct the no- tice therein appointed to be given, to be published in the paper printed by authority of the government, wheth- er it is called the Edinburgh Gazette, or Courant, or whatever name it is called by, rather than to leave it so luueii at large, as to be inserted in one, or other, of the Edinburgh newspapers ; and as to Nos. 5 and G, I sub- mit to your Lordships, -whether the qualification for a voter, or of the governor, sub-governor, and deputy-gov- ernoi-, is not too small, if the capital stock is thought fit to be allowed to be so great as G0(),()00/. ; as lo Nos. 7, 8, 0, 10, 12, 13, 14, 1.1, I have no objection ; as to No. 17, 1 sul)mit to your Lordships, whether the charter should not siK'ciiy what should be the con.seci nonce, if the cor- poration should borrinv more on their bonds, than the value of the real estates they shall have purcha,sed ; as to Nos. IS, ill, 20, I have no objectiim ; as to 21, his Majesty, by the laws of England, by his letters patent, caiuiot make l^.jids a.'-signable. so as to transfer the prop- erty to the a>sinnee. but possibly, by he laws of Scot- land, the property of bonds may be transferred by as- signment to to tlie assignee, of which the gentlemen of tiie law in Se..tlau(l ;nv by much the properest judges; as to N,,. 22, I have no ..l.ie,.ti,„i : as to No. 23, [ doubt, by the laws „f Kngland, th.> King, by his letters patent,' '■""""♦ '"""'• ""• '""irse „f desr,.„t ..f (hing.^ au.j make tilings in lh,.;r „:,tur.- prr,.,„al d.wc,.„.| to fh.' heir; but as tothi. ilso, (he laws of Scotland n.ay be .1 iff.. rent, which the gentlemen of the law in Scotland will take OF THE COLONIAL CONSTITDTIOXS. 536 care to settle as it ought to be by that law ; No. 24 is the usual clau^^c : these things I .submit entirely to your Lordships. Upon the substance of the heads, as to the form, there is no doubt but the lord-advocate will settle them as they ought to be. I cannot omit mentioning to your Lordships, that when the lord-advocate and n?y"elf received his Majesty's commands to consider the petition of Sir Robert Sinclair, and the other gentlemen rnr this charter, we sent a copy thereof to the South Sea com- pany (as had been done formerly in cases of like nature), to know if they had any ol)jection to it, who returned us an answer, that they had no objection t.) the petition, but they desired to see the draft of the charter before it passed. I -annot but observe also, that by the a.t of parliament of last sessims, which estal)lish'ed the com- panies for insurances, &c. page IKO, it is enacted. "That no person should be entitled to any greater share in the capital or nominal stock of either of surh respective cor- porations, than the money which he. or she. or tliev, shall have paid tow irds the same,' which claii.sc. as I take it, was added to prevent the turning them into bnl)l,les,' their aversi.m to which, as the pedtioncis have often de- clared, .so I apprehend it is mucii lor tlio service of his Majesty and the public to prevent; and for that pur- pose, I presume to put your Lordships in mind, wbetlier it would not be proper to have a dause. tbat no trans- fer of any sbare of this corporation should be permitted, unless it is made witbin some sb<.rt liinite.l time, to be' specified in the charter, after th.- contract f.,r the same shall be made. J'/y//.*/H, 1721. iu,„. Havmo.nd. (2.) Mr. /''a„e.i npinion of the er 25, 1732. Fkan. Fane. (3.) T/ir AUnrucy-General }Wk<'n oplniun,on t/te fjotp- er of the j>i.9Ucrs of the peace in Neivjoundlnnd. To the Right Hy their commissions, to act according to the laws of England, 1 apprehend they ought to have pursued this act of jjai'ianient as near as the circumstan- ces of the cose would admit, and to have laid the tax aft- er a presentment by .some grand jury, upon the inhab- itants, and not upon fish, or fishing-boats. So far as the people have sulimitted to this tax, there may be no oc- casioK to call it in (luestion, but I cannot advise the tak^ ing of rigorous methods to compel a compliance with it. As to the second (prnre, if any persons are guilty of I '3 • 1 r • ■ S si U -M 538 OPINIONS OK EMINENT LAWYERS. assaultlnrr any of the justices of the peace or constables, cr of actual resistance to their authority, they may be indicted for such offences at the quarter sessions, and punisliod by fine or imprisonment ; but for contemptu- ous words spoken of the justices or their authority, they can only be bound to their good beliavi(jr. Oflences by destroying the stocks, or whipping-posts, are indictable, and may be punished hy imprisonment or fine, or partly by the one, and partly by the other; and liis Majesty's may direct the fimes to be applied to make good Puch stocks or whipping-jtosts. As to the third (jua re, I am of opinion that the justi- ces of the peace cp.nnot decide differences relating to property, and that t.heir power is restrained to the ci im- inal matters mentioned in their commission. As to the fourtli //'.rm-, I am of opinion, that neith(>r Captain Osborne, r.or .'yorkf:. (1.) 'Ilf saiiK l(nri/fr\// the poirHf of the .V( ni((l nfliiri.-i (it Xi irt'o,inilJaii(f. To t!ie King's I lo.st excellent iMajesty. May it please your Majesty. OP THE COLONIAL CONSTITUTTONS. 539 In humble obedience to your Majesty's commands, siornilied to me by his Grace the Duke of Newcastle, your Majesty's principal secretary of state, referring to me an extu.^t of the commission to Caftain Osborne, Governor of Newfoundland, so far as re'i^tes to the au- thority and directi(m thereby given to him, to appoin. Justices of the peace in the several districts of that colony, and an extract of a letter received from him with copies of two papers therein referred to, (all which are hereunto annexed,) by which it might appear how he is o})structed in the execution of your Majesty's com- mands to him in this respect, and particularly, that it is pretended to be contrary to the act of parliament for encouraging the fishery of Newfoundh.nd, and directing- me particularly to take that act into consideration, and report to your Majesty how the law si.inds in this ])oint, and whether there is any fo;nidation tbr that ol«jection, or any interfering between tlie powers given b^- the act to the fislung admirals, and the auHioi ities Avhich justices of peace, in the manner fhey are established iiere, are invested with by their commission : I liave considered the said annexed papers, and also the act of parliament above mentioned, which was made ii. the lOth and ' Ith years of the reign of his late Mi-jesly, King William III.; and'l lunnbly certify to your Mnjesty, tlial by the said act, it is enacted "That the admirals' "I" and iu every port and harlMU' of Newfoundland, fbr the time being, be, and are, tiiereby aiithori/cd and re- '|nirc(l (iu order to preserve peace and good govrnniM'iit :iiiioMvst tlu« s,.ameu au.vtiv.' harbors as on tbcslion-,) to see tl,,. mlos andor- 'l"r- iu ;he said act intaiucl, concerning (lie re-ula lii'iiofthe fishery there duly put in execution; and .f it r » I t i I • • . ' . ^ i' '■■fci iH^ w ■ ; £~F *' i : i: ■ ' ■ §- ' 1 f- t jp!Pifppq 540 OPINIONS OF EMINENT LAWYERS. i that in case any difference or controversy shall arise in Newfohnd^and, or the islands thereunto adjoining, be-, tween the masters of fishing-boats and the 'nhabitants there, or any by-boat-keeper, for, or concerning, the rights and property of h.,:iing-rooms, stages, flakes, or any other building or conveniency Tov fishing or curing of fish in the severa- harbors or covee, the .said differ- ences, disputes, or controversies, shall be judged and de-. termined by the fishing admirals in the several harbors and coves ;" and in case uny of the said masters of fish- ing-ships, by-boat-keepers, or inlnbitonts, shall think themselves aggrieved by such judg-aeut or determina- tion, and shall appeal to the 'ommuuders of an} of yojr Majesty's ships of war, a])poiPte(l as convoys for New foundland, the said connnander is hereby authorized ^nd empowered to determine the same, pursuant to the regulation in the said oct. These are all the clauses in the said act of parlia ment which relate to the present question, whereby it appeiirs that the whole authority granted to tlie fishing admirals is restrained to the seeing the rules and orders, contained in that act concerning the regulation of the fishery there, duly put in execution, and to t; determi- nation of diii.rences arising between tlie masters of fishing-boats and the inhabitants, or fftiy by -boat-keeper, touching the right and })roperty of fishing-rooms, stages, Awakes, or any other building or conveniency for fishing or curing of fish, in the several harboi.s or coves o'f Newfoundland, which is a kind of civil jurisdiction in particular cases of property ; whereas the authority of justices of the peace extends only to brcMches of the peace, and other criminal matters, and therefore, I am humbly of opinion that the powers granted by your Maj- OP THE COLONIAL CONSTITUTIONS. 541 esty to captain Osborne, to constitute justices of the pea^e in Newioundland, is not contrary to, or inconsis- tent with, any of the provisions in the said act ; and that there is no interfering between the powers given by that act to the fii-hing admirals, and the authorities which justices of the peace are h ested with by their commission. Deccmlcr 29, 1730. p. Yorke. (5.) Ike opinion of the Attorney-General, Ryder, on tie Kinr/s power to erect courts of justice at Newfound-^ land. To his Grace the Duke of Bedford. May it please your Grace. In obedioice to your Grace's commands, signified to me by your Grace's lettev of the 23d instant, setting forth that your Grace had laid before the King a letter which you had received from Captain Rodney, late Gov, .^nior of Newfoundland, wherein he desires at the re- iliifsl of the principal inhabitants of that island, that your Grace would move his Majesty in their behalf, that I>ower may be granted to take cognizance of capital crimes there; his Majesty had thereupon been pleased to command your Grace to transmit to me an extract of the said letter, that I should con.^sider of the request of the said inhabitants, and report to your Grace my opin- ion for his Majesty's information, in what manner I think his Majesty iiuiy coinrily with tbeir request, con- sistent with the 13th artitie of the act of parliament of the lOtli and 11th of the i*eignof the late King William, for the trial of persons guilty of capital crimes in the said ishind, in any shire or county in England, a copy of which article your Grace was pleased to inclose : I have 542 OPINIONS OP EMINENT LAWVERS. peru.;e(l and considered the act of the 10th and llth of King William III. and the inclosed extract from Captain Rodney's letter, and am of opinion that his Majesty has a prerogative and right to erect courts of jnstice in New- foundland for the trial and punishment of all sorts of crimes committed there, and that the act of lOtli and llth of King William III. does not take away or affect that prerogative, so that his Majesty, notwithstanding that act, may erect and constitute such court there lor the trial of capital and other crimes as hit. Majesty shall, in his royal wisdom, think proper. I would only take the liberiy of informing your Grace, that about the year 1738, this matter was taken into consideration by the board of trade, in pursuance, I l)o- lieve, of some refe; ^nce to them from his Majesty, (,r a committee! of cancil , nnd the board did make a report concerning it, after having taken the opinion of myself, and his honor the present master of the rolls, the then attorney and solicitor-general, in which report they pro- posed in^e^ting into the commission to tlie next govern- or of Newfoundland, -„ clause to empower tho governor to erect a court of justice there, to the same effect as is inserted into the conunission to other governors of his Majesty's American commission governments; but that clause coming afterwards to be considered in council, was rejected, ps I have been informed. Januar,!^ 30, 1740. J). \\\iw.\i. (G ) Thi opinion of the Attoncj-Gvneml, liifhr, that the King could not give pnver () e.sf.afjli.s7t a criminal court at Xcwfrnudhinl, hut nwhr the great seal. To the Right Hon. the Lords Commi.ssioners for Trade and Plan lotions. m OF THE COLONIAL CONSTITUTIONS. 643 My Lords ; I have peru;.ed and considered the several i.npers your Lordships were pieasod to transmit to me, witli Mr. Hill's letter of the 26th instant, desiring my opinion, wheth- er a power to take cognizunce of capital crimes in New- foundland can he granted to the governor of that coim- try ])y instruction only, signed hy his Majesty in coun- cil, opiinoti of I'll' A '(.rir 1/ ,iiio, w'lich i humhU submit to theii- lorddiip-' iu(h.;ruent. /'<■ '■"•• •''f>l- K. Sawvi:ii. 'rhou;;:h I was once in<'lined to think, that the s(>al oil, imi)orti'd by the Museovia coin])anv, was liable to pay the DA pei ton, and did -ive snuic (ipinu.n that \\a\, yi't up, HI better coii:i(K'ration of the ,ici. ami the >' rentiilif. — Oil C.iinneree. iiiis head m.iy be- di\idei] iul,) ,„.■ unxv a.ilowini; di- visions ; 1. Manula.'tures set up abroad; 'J. The aets of ii:ivi;,Mtion; 3. Miscolliineous muttors of trade I. ('ojnM. \ V- '^Il ',il!i:1 548 OPINIONS OF EMINENT I.AW 'ERS. I.^ (] .) Iho. opini'vi of the Solirilo,'-li.^hu,., Hntt^k liiiiii>/f(f< (iiiT'i III Fiinirr, ''"" "'" '''-'" """■ tlioLcnls C inissJc.M.Tsnf Trade and I'lautatiiin- My l-..r.ls; In obedion.-;. t<. your Lordships' oommnnd,<, signified to -nr by Mr. I',.|.pl,., I h,u o pnuscd and .•..uMdere.l the several lettrrs ivialmg i.. tl„. ostabii>l,ing ,M.v,.r;,| inan- fa.fuures, in foreign \r.n[.. I.y IJ.itish artificer.> , but, us OF THE COLONIAL CONSTITUTIONS. 549 the cane is not particularly stated unto me, it will not be pos<>il)le Ibr nw to give a direct answer to the ques- tion proposed. I (shall therefore beg leave of your Lord- .«hips to consider it something at large, and to lay down some irenL'ral jiositions, which I take to be agreeable to till" law of England ; a right application of which, I be- lieve, will in a great measure amount to an answer to such in(jwii ies as may be made. 1. That particular subjects should have an uncontrol- able liberty of all manner of trading, is not only against the policy of our nation, but of all other governments whatsoever. I do, therefore, take it to be law, that the Crown may, upon special occasion, and for reasons of 3tate, restrain the same; and that not only incases of war, ])l:igue, or scarcity of any connnodity, of more necessary use at home, for the provision of the subject, or tin- defence of thtj kingdom, &c. (ui which cases the K iig's [»rcrogative is allowed to be l)eyond dispute,) but even foi' the ])r".Ncrvi>tiou of the balance of trade: as, suppose a foreign j)rince, though in other respects pre- serving a fair coni'spondence and in amity with us, yet will net punct.Killy observe such treaties of connnerce lis may have been made between the two nations ; or, ill ci'sc IIktc arc no such treaties existing, refuses to en- tt 1- inln Mii'li ii rcgidatiiin of trade as may be for the nm- tual aiivantagf and heiiclit of both dominions on such occasion. I am orii|iiiiioii that the King, by his preroga- li\c, iiia\ |)idhiliit and rest r; in all his subjects in gener- al, lidMi fxpoiting paiticiilar coniinoditics, ^^c. ; or else, gciicrallv, iiiun tiaijiug to siu-h a particular countrv or place; since trade does not only deju'nd upon tin- will (ir la\\< iA' tlie prince, whose »iii»ncts ad\ ciitiire abroad tocaiiv it Mil, liut alsoofth.it prince into whose conntrv ,". , \l ! i ' ! r i rti I i f- 650 OPIMO.NP OP r.MI.NF.NT ' AWVERS. I M I i L is* tho co;nin a way of c .n,inerce, i. an otrence punishabh- at the common law. 3. i'orei^n trade carried on bv partienlar subjects ''"■"'^■"- i'-'V"'-' -Ivanta.e. which are nallv destruct- .ve unto, or else tending to the general dis-,d\anta.^e of tl.c Km.., I,m. are under the power of (|„. (-,„,,.„ n, be n-tnu. ,1 or lotaiiy prohibited. Tbe.v ,..av be a oro- '"'"""" "1 comiiieree without ooe,, enmilv a. an .ae'tual 'l^'^'laration of war. and partie.dar subjects, u ho for uy\. vato jrain, carry on a tr,-de abroa.l. whi.-h c.ui.es ■, ,.en '■'•'•: pniiMHcorloHs to the kingdom, considered as an "'""■" '""'^' '" '!"i"^ -. .nandeulv aet a-ain^t the '•"'''"■ -""•'• ■'"^l"nd,t no, onlv to b- p.-ohibited b.,t pmu>hed. Carrun.r onsnehtrade.. i-. i„;,M.b (what ^'omo act. of parliament hav deelan.d .o„,e tnde. (o OF THE COLONIAL CONSTITUTIONS. 661 be,) being guilty of common nuisances : and if the Crown, which in its administration of government is to regard the advantage of the whole realm, nhould not be invest- ed with sufHcient pov. er to repress and restrain such common mischieis, it has not a power to do right to all iis subjects. If the public mis-liief-^, Irom such a way of trading, be plain and evident, thore is the same rea- son for restraining particular persons from carrying on a trade that draws such cons«>rpionces after it, (though it be a trade that of itself is not prohibited by any par- ticular law) as there is, that a private subject shall not make such a.' use of his own house or land (in which he has an absolute propriety and a legal title to it), as will turn to the common annoyance and public (b'triment of the rest of the kingdom. 4. The general trade of the nation, and tiie maintain- ing of the customs and duties granted to the Crown tor the support of it, arc things of so public a concern, tliat whatsoever has a dir«ct and evident tendencv to the discouragement, and di.-iad vantage of the one, or to the duiiinution of tiie other, i.s a crime agaiiist the public. As an instance of which, I shall mention it as a kind of precedent, tiiat raising and spr.'adimr a story, tliat wool vould not be suffered to be exported upon such a vear (probably by some stock-jobbers in tiiose times), wiiere- by the value of wool wsis be;t(en down, though it did not appear the delendauts reaprd any particidnr advantage by tiie (h'ct'it, wns, upon tiie account of its \n '\)^( 'jiiam phrinui hohi.'^ ct qmim phwihix , (Urtr ro,':>,up. no.H,"' mi/ln-s' (xIkc r(ui.s;i. 6. Upon the very foot of trade itself, it is necessary that the Crown should have a power over th.' persons and dealings of their subjects in f..reigM parf^. Hv the law of nations, a government if they have no other re- OF THE NATIONAL C OMMERCE. 553 dress, take goods from any of the same nation, by way of reprisal for injustice done by one of the nations. So that Englishmen suffered to reside abroad, by their mis- behavior may endanger more than their nvn persons and estates. But, as the stating to your Lordships, the power which the Crown has to j)rohibit the subject from going abroad, when there is reason to suspect that de- signs prejudicial to the kingdom are carrying on alone, IS not sufficient to answer your Lordsliips' purpose, I shall beg leave to remind yi,ar Lordships of a case par- allel to this, which has already had a determination at the board: aiino one thousand seven hundred and five, several English merchants were cc.ncerned ina design to set up tlie manufacturing of tobacco in Russia, to which pur])ose they had carried i.ver the necchsary workmen and instruments; Imt. upon application i ■ the bvard of trade, the then lords connnissitmers did represent it to the Queen in council, as their opinion, that tlie persons who had been already sent to Mo'^row, might be recalled by letters of privy seal, directed to her Majesty's envoy for that purpose; and, that the engines and materials of working should be broken and destroyed in the presence oi' the said envoy ; and, tliat the persons at home, who were concerned in sending the said workmen over, should be enjoined not to send over any more w(Mkmen or materials, &c. Upon inquiry, my Lords, I am iiiTormed that the '.vid works anil materials wi-re uctually destroyed in llussia, and the workmen sent back again by the direction of the envnv,who took theadvunlage of the Czar's absence from the place where they .vere established. What was then done, may certainly be repeated. 1 . is not the bus- iness of a lawyer to consider how such \i method of pro- '^^- fH- 11 I i. 554 OPINIONS OP EMINENT LAWYERS. ceeding may be relished by a foreign court ; but only to give it as his opinion, that it may he justijitd, as against particular subjects who are guilty of so high a crime against their country. Dec. 5, 1718. Rich. West. (3.) llvi opinion of the Attorney-General MaalonaJd, how far the Xing may restrain his subjects from going abroad. A case of so much importance as the present, and not very frequently occurring, would require more in- vestigation than the unavoidable shortness of the time permits me to make ; nevertheless, certain established principles furnish conclusions which, in my judgment, forcibly apply to it. The question must be, first, Whether the British sea- men found on board of the Friendship, have committed any, and v/hnt offence, and how it is punishable ? Second- ly, Whether Broiigh, Taylor, and Rising, have com- mitted any, and what offence, and how that is punisha- ble ? Thirdly, Whether, in case an action should be brought on account of the detention, there be a good defence tu it 7 -As to the first, disobedience to the King's lawful commands, is, by the common law. an high mis- prision and contempt, punishable, upon indictment or information, by line and imprisonment, aiul that the King may liiwfuUy connnand the return of his sul)joct when out of the realm, ni .or the penalty of seizing his lands till he return, or may command any particu- lar subject to remain within th(> realm, by liis writ of ne e.reat rcgntnn, orall, orany part of hU subjects by pro- clamation, has been hmg and often recognized as a part of the common law. ."itzherbert, N. B. fol. 85, C. Bays, " that the King, by his proclamation, may inhibit or THE NATIONAL COMMERCE. 555 his subjects that they go not beyond the seas, or out of the realm without license ; and that without sendin any writ or commandment unto his subjects ; for per- haps he cannot find his >ubject, or know where he is ; and therefore the King's proclamation is sufficient in itself." And the judges held (12th and 13th Ed.) that departing the realm without license, was no contempt, though done with intent to live out of the Queen's al- legiance; the dcpaiting having been before prohibi- tion or restraint by proclamation, or writ of ne exeat awarded by tli' Queen; by which it is plainly implied that departing after proclamation would have been a contempt : and even so eariy as the reign of Edward I. several persons were impleaded for having acted contra- ry to a legal proclamation. Lord Hale, in his treatise de portihus maris, part 2. c. 8, sums up the law upon this subject, thus : First, At common law, any man might pass the seas without license, unless he was prohibited ; Secondly, At common law, the King might, by his writ, prohibita person particularly from going beyond sea with- out license, and tliis may be done at this day ; Thirdly, At common 'aw, in time of pul)lic danger, and^ro hoc vice, there might be a g^jneral inhibition by proclamation, re- straining any from going beyond sea without license. — ■ From anotiier ])assago in a MS. of tlie same writer, he shows what ivind of puljlic danger he adverts to, for speaking of tl»e general restraint, as distinguished fron^ restraining an individual, lie st'ys, " tliis is clcarlv tliat restraint intended by tlio statute of magna charta, nivi puldici ant>:a pro'Ultil facient (not as if i'. must bo a prohibition by act of parlimament,) and this appears by the constant practice, especially in time of danger, when a free passage might either weaken the strength, or dis- > i i !■ ♦ I- *■-#- I 556 OPINIONS or EMINENT LAWYERS. I close the .ecrets of the r.ahn." And after citing n^any ULstances, he adds, "and this prohibition the King mav take oil- generally or particnlarly, as he plcaseth." From these authorities, and the constant practice of prohibiting marines, by proclamation, froia departing the realm for the purpose of entering into foreign ser- vice, at times when the state of Europe would render it dangerous to weaken the strength of the nation, I con- ceive that the British seamen on board the Friendship who actually executed a contract for the 20th of March last, are guilty of a misdemeanor, for which, upon conviction, they may be fined and imprisoned: as the Kmg, by his prerogative, may restrain all his subjects Irom departing +he realm, he undoubtedly may such classes of tliem, on nhich its strength depends. Secondly, ^\•ith respect to Brough, Taylor, and Rising, il the entering into foreign se^-vice, in breach of the proclamation, bo a crime in the British seamen, I am ul opinion that a conspiracy to entice and carry them into foreign service, is also a misdemeanor, punishable by line and imprisonment, if the evidence, upon ex- amination, is sufficient. Tliirdly, With rc-^pect to the sufficiency of the defence to an action l)rought iigaiust the officers, I think they might justify the detention of the ship, so long as the British seamen were on board, and till thev received di- rections upon the subject. The commander of a ship actually disobeying tha law, cannot, 1 apprehend, insist upon a clearance. By the 12th Cli. II. c. 4. s. 12 pow- er is given to the King, to prohibit, by proclamation' the exportation of gunpowder, &(•. |,ut no .specific mode ol putting the act in force, by preventing the exporta- tion, is pointed out; nor was any pointed out till the OF THE NATIONAL COMMRRCE. 557 29th George II. c. 16, forfeited the gunpowder ard in- Hicted a penalty. During the period which elapsed be- tween the passing of those two acts, I think the officers of the custom.s must have been justified in stopping a ship having gunpowder on board, after n proclamation, till such gunpowder was relanded ; and thjs proclamation^ is ecpially warranted by the common law. July 31.s^. 1788. Ar. Macdonald. (4.) 'Ihe opinion of the .Att')riiey-(r(-),rral YorJce re- lating to iJwjlish subjects being engaged in the East In- dia Company of Sweden. To the RighL Hon. the Lords Commissioners for Trade and Plantations. My Lords ; I received your Lordships' -ommands, by letter from Mr. Popple, signilyingtc -ne that your Lord.ships havir.jr some papers under your consideration, relating to an East India company lately er'^cted in Sweden, wherein several Englislimen are thought to be engaged, not only as having shares in the said company, but as captains, supercargoes, and sailors, had desired 1 would let your Lordshi[)s know what laws ore now in force to restrain his Majesty's sulijects, either in or out of this realm, from bc'-.g anyways engaged as aforementioned, and what l)enalties they are subject to; as also my opinion, wheth- er his Majesty ha,-i nny power to recall his subjects (other than artili(!ers and niiinufac^urors) IVom foreign parts and if they are liable to any penalty upon their refusing to return. As to the first ((uescion, wliat laws nre now in force to restrain his Maje.-ty'sMil); :^cts. .-ithor in or out of tho realm, from being engaged either as sharers in the .slid company, or as captains, supracargoes, or sailors under IH m *l «l«illl<-/i> V\-iLllV . OIO IjOI UM1I|)> uiai tne act 558 OPINIONS OF EMINENT LAWVERS. made in the fifth year of the rcisru ol liis Inte Majesty Kin^r Georre I. entitletl. "on act lor the better socuring the lawful trade of his Majesty's suhjocts to and from the East Indies, and for the more ellectual preventing all his Majesty's subjects trading thither under foreign commissions," expired at the end of the sessiori of parlia- ment. But the act of the ninth year of his said late Majesty's -eign, entitled, "an act to prevent his xMajesty's subject- from subscribing, or being concerned in encouraging or promoting any subscription for an East India company in the Austrian Netherlands, and for the Vtter securing the lawful trade of his Majesty's subjects to and from the East Indies, is still in force; whereby it was {inter (did) enacted, that if any subject of his Majesty, his heirs, or successors, should subscribe, contribute to en- courage, or promote the raising, establishing, or carry- ing on any ibreign company- or companies, afterwards to be raised, formed, or erected for trading or dealing to the East Indies, or otner parts within the limits of trade granted to the English East India company^ or should become interested in, or entitled unto, any share h\ the stock or capital of taich company or companies; every person so oifending, shall forfeit all his and her interest, share, and concern in the capital stock or actions of such company together with treble the value there- of, to l)e recovered and distributed as that act directs. I'enalties are also indicted by the said act, upon any of his Ma.jesty's subjects, who should know of any share or interest, which any other subject iiad in any such compaiiy, vithout discovering the same, or who should accept of ay trust in any share or interest, in any such foreign oompanv. OF THE NATIONAL COMMERCE. 559 It is also enact, d, that if any .subject of his Majesty, his heirs, or successors, (other than such as are kwfuUy authorized thereunto.) should go, sail, or repair to, or he found in or at the East Indies, or any of the places aforesaid ; every person so offending, should be guilty jf a high crime and misdemeanor, and should be liable to such corporal puuishmentor imprisonment, or to such fine, as the court where such prosecution .should be com- menced, should think fit; and should and might be .seized and broiiirht to Lnjrland, and upon their arrival here, be committt I until they should find security to an.swer for su( h ..Hence, as this act requires. By an act iii;ide in the seventh year of the re^gn of his late Majc Iving George I. cap, 2.. all contract"? entered into by any of hi.'^ Majesty's subjects for loans, by -way of bottomry, or any ships of foreigners bound for the East Indies, and for loadin;^,, or .supplying such ships with a cargo or provisions, and all copartnerships or agreements relating to any such voyage, or the pro- fits thereof, uud all agreements for wages for serving on board any such ships, are declared void. Besides the particular penalties and provisionst)f these acts, every subject of his Majesty, offending by traffick- ingor adventuring to the East Indies, or visitingor haunt- ing the parts aforesaid, under "olor of being concern- ed in, f)r employed by any such new company, will in- cur the penalties infiictod by the act in the ninth and tenth years of King William III. cap. 44. viz. the for- feiture of all ships and vessels employed in such trade, with the guns, tackle, apparel, and furniture thereunto belonging, and all the goods and merchandizes laden thereupon, and all tao proceeds and effects of the same, andal.fo double the value thereof, to be seized, sued for, Ml f !•' H 560 OPINIONS OP EMINENT LAWYERS. '-} ' and distril)uted, as bv that, mid several subsequent laws, is (Ji roc ted. As to the second question, whether bis Majesty hath i.nv power to recall his subjects (other than artiticers and manutacturers) from foreign parts ; and whether they are liable to any penalty upon their refusing to re- turn: I am of ()j)nuon that his Majesty may, by letters under his privy seal, require any of his subjects going into foreign i)ai ts without his royal license, (except mer- chants), to return home witliin a limited time, upon tiieir allegiance; and also merchants, incase tiiey are guilty of any practices contrary to the duty of their al- legiance ..r the laws of the land ; and if anV person, af- ter such letters of privy seal served upon him, sliall not return into Great Uritain within tlie time th 'reby pre- scribed, he will forfeit the rents an.l profits of all ids lands and tenements during his lifo, and ail lils {.crsoaal estate. As to MMinen, his Majesty may, bv a genera' procla- mation under Ids great seal, command all .seamen, being his natural born subjects, who shall be in the service of any fo«fign prince or state, or omph)yed on board {ho ships of foreigners, to return home, up. , the duty of tluir all( fiance, and luider (he peril of being g„iltv of a ••ontempt i,ii,lnn ,1.9 to the scuh,,, ,,„>/ nnuhtne- ?•>/, fihirh inrr ils„,u,.l f» he crportrd, a,nl ,'r/ar/, were used 1. 1 fhf A'/<;'//'v// >ii,nuifh,iurr. is ai\y law of this kinj^dom by which any machine or tools used in any of the manufactures of this kinsr- dom, may he seized, at tlioir being put on ))oar(l ship for exportation to any foreign country; I beg leave to in- form your Lordships, that 1 fin/'r/-2S, 1730. Fhan. Faxk. II. (1.) 'IJii rrpini of the u-ltui/'iiiii^. fom /tin,/ (/k ((■s^.i< iifo, in ii;,s'.». In pur.-uance of his .Majesty's onler in council, hero- luto auuexcil, we do huiiibly certify oui- opinions to be, tliat /iri^ioi.'i (lie merthaiiffh)' : that it is against the stat- ute for navigation, made |<)r the general good ami pre- servation of tlie ^bip|Mng and liaile of tliis Uingilou!, to iiive liberty to Mn\ alien, not mad'- denizen, to traile iu •lamaicH, or other his Majesty s plantation.s, or for any shipping belonging to alicuf* Uy trade there, or export ■' ^ ''■ I i-f^j ' \\ '^ » \ Hj 662 OPINIONS OF EMINENT LAWYERS. !• thence, negroe , provisinns for .shipping, or aliens trading there; that for ship.s tLn .«hall happen by tempest, or in ca.se of poril and distress, to come into the plantation.s lor preservation, and to an^end or take in : . "ssary pro- visions, or repair there, in .sucli case it is l linst the act of navigation or any other lav/. J. Holt. R. Lechmere. H. PoLLEXFEN. ThO. RokEBV. Ed. Nevill. J. Powell. II. Gkegouy. Gyles Eyre. Peyton Ventris. Jo. Turtox. (2.) 77)e opinion of the Altornry ami S'tUcitm-Gcner- al, IrLly and Soz/urs, on the Sjxi/ii.s-h tra'J,^ in the West Indies. Most of the privileges and pennn^ion-*. proposed by the Spanish conunissioner, cannot Ite ginnted without dispensing witli tlie act of navigntion, 12th dr. II. cap. 18. wherein, hesidt^s the matter of law, there U a great consideration oi" policv. 1st. The act reipiircs that no goods or coirnnoditios wliatsoevei', shall Ik* imi>orted to. cip exjtorted i'l-oni. anv j)li>ntalioMs. Itut in P^nglish vessels IJut fliis iniist liiive a rcasonuhle cons'.ruction, and nuist he iindcMvto ' of sucli goods anil commodities as art- to l>c traded with, and lint of provisions for present .^ii>tciiaiicc. or tackle for refitting a ship, or siudi like neces.siries lor accident- al occa.sions. 2d. 'I'o dis'nn-den a ship merely for caiiTning, ma\ he lawfid, so ii l)c f.tiiit fid, , hut ii is (hingerous to make HUth an aiticle, les', under the nmhragr of that, a son-t trade !-• covered ami CMTie2>inioii of iue AttnuDf a)id SiiJi(.itov-Gen- tiiil, 'li'tvor and JIincU-9, on carrijiiuj lot/wood to Venice, whi'tlur lc(jaL To the Right Hon. the Lurd.s Commissioners for Trade iuid Plantations. >liiy it plcaso your Lordships; AN (' hiivc cDii^idcicil (if till' scvi rnl laws for regulating fill' plan' itioii, and ollu-r tnidi's, in Kiigland, Jind as to till' (ii->t part of thi' case, viz: the carrying lo<:\vood iVoni Jb)ndiinis, in tlu' \\\<{ Indies, (the sauir h.-ing no part of \\U Mai<' ty'> plii'tatioiis) to Vcnici', we caiinot find aii\ law that restrains or forbids the same, unK'ss the .>-hi|i (loth hcloiig unto sonic of his Man'sty s jilantations; and as to (he landin^^ Knropcan goods at Venice, and cnn\ liiir the •^a me to ( iiniiea in canit,i-(h'ucml Xnrthni un presirviuij the rix. \\'hitehnll, Murch ('.. 1717-18 Sir : Mr. r.odolphin, !it tending the I.ords Counnissioners for Trade and I'lant.ili.ms tl,c other day, upon the sub- ject matter of a bill, hy him pn.p'wcd, for preserving the riglit of British-built ships, .imongst .)thcr things he in- formed their Lordships, that many doubts had arisen up- on a certain clause in an acr, ■■ for preventing frauds, and reguhiting abuses in his Majesty > .iistom^. ' passed in the l:5th and lltli \e:.rs of King Cbarh-s U. the wor.ls of whichciau.-^eanMisloih.ws: ^That noibreign-buijt ship, that is tosay,n(a builtiuan.N n| his Majesty's dominions' of .\Ma, Africa, (.r .\merica. or otiier than such as -hall {Una fiilt) be bought betl.re the ist of O.inl.ei-, l(;(;2, next ensuing, and expressly nauK'd in the said \\<{. shall enjoy tiie privilege of a ship belonging to Kngland • r Ij-eland, although owi ,■,! or manned l.y Knglish, (e:;ccpt such ship, only U.S .shall be taken at sea by letters of ' wi OF THE NATIONAL COMMERCE. 565 I marque or reprisal, and condemnation made in the court of admiralty as lawful p-ize,) but all such ships f*hall be deemed as aliens' ships, and be liable to all duties that aliens' shins are lialde unto, by virtue of the said act for increase of shipping,' luid navigation." Now their Lordsliips would desire to have your opin- ion how far this clause extends, and what alteration it has made in the case of foreign-built ships, that is to say, whether, by thes>! words, "That all ships shall be deemed as aliens' ships, and be liable to all duties that aliens' ships shall ))e liable unto, by virtue of the said act lur increase of shipi)ing and navigation," })c meant that such ships, being deemed as aliens' ships, shall be liable to the forfeitures, in some cases, as well as liable to all duties in other c^ses, that aliens s ships are liable to. by virtue of the aforesaid act of navigation! Or whetiier thi.' forfeitures, apj)ointed by the act of naviga- tion, on ships iin(piali(ii'(i, by the said act, to nuikc some voyages, and in trade in certain species of goods therein cniiMU'fatcd, are so far altered by the foregoing clause, in respect of foreign-built slii[)s, of English property, and maimed by I'/niilisli, though purchasi-d .since tiu: year Hi<"i2, that sucli sliip> may make the said voyages, ancj tiaiie in tlic s.aid cuumeiiited goods, paving aliens" (hi- tics ;' A al;. lo the Kight Ihiiiorablr the Lord.-! Comiuissio'iers for Trade and Plantations. May it plea.se your Loid-hips; 111 obiMlieiice to your Lordships' commands, signified to me by .Mr. Popple, I have considered of the ^/lurriis, I I H-IJ 5G6 OPIXIOXS OP EMINENT LAWYERS. t stated by your Lordships in tlie annexed paper, upon the act for preventing frauds, and regulating abuses in his Majesty's customs, arising upon some discourse your Lordships had with Mr. Godolphin, and am humbly of opinion that foreign-built ships, of English property, and maimed by English, though purchp .d since the year 1G62. may make the voyages that any foreign ship, made free Iwfore tliat time, might liave made, and may lawfully trade in the enumerated goods, paying alien du- ties; and that this has been always the opinion of the court of exi'lieipier, and the practice has been accord- ingly, and there is now no pretence to fancy that, al- though such ships are now deemed as alien ships, they are liable to forfeitures as if they vrere in the hands of aliens, for that the only alteratixju made by the clause stated, is, tliat such f )reign-built shii)s, owned bv Brit- ons, are to pny duty as alien ships, but they are quali- iied, as ships belonging to the people of Britain, to trade as such ships might have traded, by the act of naviga- tion. J/rar/i 12. 1717. Ki,w. Northey. (0.) Ihc opinion of tJu: SoLfitor (ra)rral T/rmimi^on Sihiitish ^hip.s tnti/in,/ to the liritish Isand.s: Sir ; Li ob(Mliciic(> to the coiriniauds of tht> Lords Commis- sKiucrs ll.r Trmlc ;mii I'hnitnlious, signif."d by yours of thr 2(1 iustiint, I lliiuk it phijn, thi.t by th(« first clause ill the act of iiaviiiati..ii. viz: the 12th of ("ar. II., tliat Spanish ships, con iiig from Spani-h ports in America, laden with the product ol' tho^c countries, are prohibited '" '"' "i|'"i't(Ml into our c.)|onifs or plantations, under tlie penally of the loss of the goods and ship ; and also OF THE NATIONAL COMMERCE. 567 f t they are prohibited to export goods from thence in ship- ping, not Enghsl), &c. February A, 1719-20. VVm. Thomson. (6.) Mr. West's opinio)} on the same •snlject. To the l\i<;lit Hon, the Lords Commissioners for Trade and Plantations. My Lords ; In obedience to j'our Lordships' commands, I have considered the following qua re, whether Spanish ships, coming from Spanish ports in America, and laden with the products of those countries, are prohibited l)y any acts of trade, and narticnlarly those of tlic 12th and ^'^i\\ of King Charles If. and that of the 7th and 8th of King William, to unload rnd sell their cargoes, i- any of the British plantations in America, and to load again there'' And I am of opinion tliat Spanish ships, coming from Spanish ports in America, &c. are witliin llic intent of the above mentioned statutes, and are thereby prohib- ited from unlading and selling their cargoes in any of the Britisli ilantations again thert'. Januari, Jl), 171'J-20. Run. West. (7.) Ilie oplitiim of the Att'irxi ij-Genevdl. jV()rth< >/, on the iniportdfinii of nunil .stores from HdUaiul. To tbe Queen's most evcelliMit M;i|\'st\-. May it please youi- Majesty. Li humlile (ibflicMicf to M)ur Mujesi v"s connnand, sig- nified to me bv Mr. .-^ccri-tary 1 ledges, I liave eou.^idered of tbe anuexetl memorial of bis Royal Highness, wbere- by it is jiroposed uut>) \ our .Mnjesty, lor llie reas(Mis therein mentioned, that leave may be given for importing r-''' : !• : a se-L OPINIONS OF EMINENT LAWYERS. tar and pitch from Holland, Hamburgh, or Piich other foreign parts, from whon.-e the same may be had on the best ts ccnrj^^y ],arlc,j j. >,n liocMle to Zi-ibcji, in 1708. Sir : 1 was very sorry to find, by yours of the I2tli of this instant, November, that the l.-:vds Commissioners of Trade had not received tue opinion I had written to the qmrc sent me upon the extract of Lord Galloway's let- ter, which, you will perceive, has becii wrote eve*!' since the 2iUh of October, but was mislaid among my papers, and forgot t.. be sent ; but 1 hope it will come tijno' enough to answer the purposes they want it I'or : tiierc- foro, with my humbh' service, 1 ik>sire yoi will lay it before their Lordships. Ja^ Mountague. Extract of a letter from the Eaid of Calloway, her Majesty's ambassador extraordinary, in Portugal, b) tlic Earl of Sunderland, dated at Lisbon, the Gth of Au'--uM 1708, N. S. ° ' OF THE NATIONAL COMMERCE. 571 1 mu^t acquaint your Lordships, that tlicre i,^ lately CDiue into this p,.rt, the ILipp}-, llicliard Knowlos, mas- ter, ironi La Rochelle, laden with liarley, consigned to a '"icior here, ?.Ionsieur TEvesque: the master first said he caiiie from Dublin, but the entry has been made from the former place, and he has the C^ieon's pass for Bilboa, ;ind at La Rochelle they have published leave to em- bark corn for Portugal, which trade, I am apt to l^elieve, they design to carry on l)y means of J]nglish vessels, with such passes for l)etter security : as I suppose such passes are not to l)e obtained ^yithout tlie owners giving security in Englnnd, it will be very proper to make them answer for this trade, so much tt) our prejudice. To the Lords Commissioners of Trade and Planta- tions. May it please your Lordships ; I have considered the extract of the Earl of fialloway's letter to the Karl of Sunderland, set tbrth on the other side.andauKif tln'opiuion that Richard Kuowl's. the mas- ter of the >bi[) Happy, which voluiitnrily v. eut to Roch- elle fo- corn tu-carry tt) Lisbon, is, in strictness, guilty of big 1 tri'ason by the stattite of the ad and 4tli of her ]ne-ent Majest^^'s reign, and so are all the persons con- eerned in that trade, if they arc subjct is to ilie Queer of Great Britniii, and go voluntarily into France, Avithout license from her Majesty; therefore, il' this mischievous trade complained of (\ini ii otliei'wi^e be preveiitcMl, the master and mariners, w lo are her Majesty's sulijects, may l)e seized as traitoi's, ;• id tried for the same, as per- sons guilty of foreign t- .^soiis are tried. October 'H!), 17'"' Jas. Mountague. ^fii f ' n 1 572 OPINIONS OF EMINENT LAWYERS. i (10.) Mr. Fane's ojnnion on the carriage of Canary wines directly to the British Plantations. 2hc Case. — By the act of parliument, passed in the 15th year of King Charles II. entitled, "an act for the encouragement of trade," no commodity, of the growth, production, or manufacture of Eui )pe, can be imixrted into any plantation belonging tc his Majesty, in Asia. Africa, or America, but what shall be .shipped in Great Britain, and in English-built shipping, and whereof the master and three-fourths of the mariners are English, and which shall be carried directly thence to the said plantations, and from no other place whatsoever, under forfeiture of ship and goods ; that by the 7th section of the said act, there is a proviso that it shall be lawful to ship, in ships navigated as aforesaid, salt for the fishe- ries of New England and Newfoundland, in any part of Europe ; and :n the Madeiras, wines of the growth there- of; and in the Western Islands or Azores, wines of vhc growth of the said islands ; and the same to transport into any of the said plantations. Since the passing of this .. t, it has been a custom to export Canary wines directly from th ; Canaries to New England, and New York ; but some doubts having arose. V'hether this exportation is consistent with the afore- said act of parliament, and application having lately been made for liberty to export Canary win(!s directlV froni the said islands to the other plantations ■ Vmeri- ca, quarc, Avhether, consistent Avith the afoi I law, Canary wines may legally be imported into any of the plantations directly from the Canary Islands ? 1 apprehend thnt the Canary Islands are not esteemed, by books of geography, to be a part of Europe, and, con- OP THE NATIONAL COMMERCE. 573 sequently, the importation of the wines directly to New- York a.id New England, will not be considered as a breach of the above mentioned act of parliament; be- sides, the long usage, in my humble opinion, will in some measure, if there should be any doubt as to the sit- uation of these islands, be a circumstance which will have great weight in the determination of this matter. FSruary 3, 173G-7 Fran. Fane. (11.) The opinion of ths Solicitor-General, iJyre, on granting pa-i-ses to ships, contrary to the act of naviga- tion. Sir: Whitehall, Oct. 26, 1708. Her Majesty having referred to the Lords Commis- sioners of Trade and Plantations a petition from Mr. Thomas Pinder, praying her Majesty's passes for four Spanish ships to come from the Spanish West Indies to Barbadoes, to fetch negroes from thence, and their Lord- ships appn:h;.ic.|ing that such pat:sports and trade are inconsistei.; wivh the acts of navigation, whereby no goods or cui!,m ■ lities wlntever may l^ imported into, or exporteu 'juX of, any of her Majesty's plantations in Asia, Africa, or America, in ar.y ^^jnps or vessels but such as do tridy belong to the subjects of this kingdom, or of L-elami, kc. their Lordships have, therefore, com- manded me to desire your opiniou, wliether the grant- ing such passes may be lawfully granted I Wm. Poppi.f,. jun. To the Right Hon. the Lords Conanissiouers of Trade and Plantations. May it please your Lordsh' "1 •■ x} .f: '"--■ \ n ■ 1! 574 OPINIONS OP EMINENT LAWVKKS. In oljodionce to your Lortlship.s' eoininnnds, .-ignificd to Hit' 1)\- the letter lic'ivuntoaiiucxed, I have cuiisidered the matter Avliieh your Lordsliips have been pleased to require 1113- opinion in; and I humbly conceive, and sub- mit it to your Lordships' .^reat wisdom, that the grant- ing of tlic passes desired will be iUegid, and directly con. trary to the act of navigation. (12.) J/r. /uiik'i^ npiiiion of t/ie Aliu/'a sj/lpa seizins^ w-9vv/.s', tradiihj (/.;r(! Connnissioners for Trade and Plantations. M\- Lords ; \\\ ol^edienee to your L<^rdship<' commands, signified to me by Mr. Hill, I have considered an extract of a let- ter from Kol)ert IJyng. Km|. Governor of Marbadoes, to your Lordships .lat(>.| tlic I.'Uhof May, 1 7 Ml, and am humbly of Minion that n.. ^hips or vcs-rls, olUMiding against the -r\ ..nd acts of trade, .) 2he Adrmatc-GniHal Sir John Cooke's, nj, mi oh, on the <'arr>jinij lobuceo from Vinjinin, in neutral sA/yw, to I'litnce. Sir: I havo Iteen out of town, or you had sooner rccoivc-d an iinswor to tlio y^/o;v you proposed tome I'rom the Lords Coiiinii-ioners H.;- Tiido, which 1 take to be tius, viz : — 15y wliat hiw, order, or instruetiou, Kniilish merchants are disallowed to send j;oods (not contra))and and ex- pressly prohiluted) in neutral ships from England, to any place in enmity with her >hijesty'? I conceive that the laws oi war and of nations do pro- hibit such tradi'i and such ])rohii lion seems i)e be con- tained or implied in her >Iajesty's dechiration of war, dated the 4th of May, i7<)2, in the "Words- '• Wehmce- lorth strictly ioriiid ail oiu- subjects to hold aiiv corres- poiidence or ( unnnication uith France or Spain, or their sul)jects;' nevertheless (jie (,)ueen may. liv con- traiy decl.irations am! in iiiictions. allow such ti;i('c so ns tln> same shall not be interrupt ,., >lo in respect to Spain by her iiistiu' lioi^ beai'inu; tlai.- the -!'tli of .lauiiar;,, ITIM whi. b, 1 think, uisin time pi-ecedeiit to the pa-Mu-- of the bill to llic >,i:ne eO'ec i however, 1 conceive thai miless the Stalc--(;ciirral can lie broiiLiht to consent to such liadc, the^oods so sen! will lie lialilc tordin<'- to the laws of nations, as the ■ ll'e<'ts of their sub|ect,s were here, notwithstanding' the pi-rmis-ion they had from the Statcs-fienonvl, till lier Majesty was pleased to allow tlHToof. .1. Cooke. Doctor^" { omnioiif", April U, 1700. I i 576 OPINIONS OF EMINENT LAWYERS. (14.) 'Jhr opiiHO)i ,,/ the Atlomctj-Orun-aJ, Yorle, on the (•■ommcnremevt of (hides iij)on Inqwrtalion. Ca-se.—Kw act passed the 12tli of May, 1720, that li- quors imported after the Kith of June shovdd pay three shiHinrrs ihity.— A ship arrived on tlie coast the 8th of June, and anchored in port the lOlh of June. Is the rum liable to duty ? The j^eneral rule is that duties laid upon goods im- ported hccomedue instantly upon the importation there- of; a-vl such imi»(.rtati.)n is always accounted from the time of the .shipV coniiuii within the liu its of the port, with intent to lay the goo.ls on land :■ therefore, I am of opinion that if the i)lace in Ra]ipahannock river, at which the ship in (piestion wa< moored or at anchor the Kith of Jun(vwas within the limits of the port, then the rum ■ not lial.lc I,, the duty ; fo- the duty not couunenc- ini,' till fn.m ,Mid aft<>r tlic loth .,f June, there wa.s :0 such dut_\ in being at the tinu' of tliis importation ^^''''' - ''-*' P. Yo«KK. (lo ) '/'i< oj.hiion ut' til,' Afti>n>(>/ ,/ S,n,th, „t .W >r Y,.rk, <>n tlu- ,/i.shihii(im of/orfcUiires, rnnur ihi acts of trade. Kouniey. at Halifax, Dee. H, 1763 Sir; A8 hJH Majesty lia< been gia.'i.,usly ph>a<,d to be-tou on me a .piarhi- of Mir uioicty ^'nuitc.l hiiu by i,et of par- lifti ont. of all s. /luv- made by sea olli.-ers, ar.l coud.'mu- cd in your court of admiialty, I hrnby ..pply to vou tor the samr : and if I may :>(• in.lul-cl m a ftu-ther recpiest, I pray the favor o|" ynu t(. .-ause the pro|.er oflicer of ^•uur court to give m^ some acrc.unt of yoin proceedings OF THE XATIOXAL COMMKRCE. or with rt'Siii'tl to -'uii seizih .-s, for we have stranjijo accounts lero of Cli uiu- Iroiii qoveruors. causes jjrejudgetl, and do tcrniined he lore trial, and of an attorney-general giving an opinion confessedly against the spirit and meaning of an act of parliament and the evidence of his own nnder- sttmdinjr; in short, of reas on oei.' ig lost in law or love of )Honey; hut I persuade myself that these are only mis- taken rejiorts, and that so far as the issue depends upon you, as judge, you will duly considi-r the a<'t oi' a Brit- ish parliament, the King's proclanialioa founded there upon, and your own appointment from the lords of ad- miralty, who are required hy the King to cause his pleas- ure, : guided in the proclamation, to he duly complied wi th. COLVILLE. The acts of trade, re.-pecting the ])lantatiou -. gener- ally enact, -That the pen' ''iosand forfeitures sued for on those acts in the ])lantations, shall he divided he- twcen the King, the ( ii>vernor. anil the persons suing for the same, each a third '' A; tatute was passt-d in the third year of his Miije-ity's reign, entitled ''An act I'ui ih.' further improvement of his Majesty s rcxcnuc of custnms, iind tor tii« encour- agement of olhccrs nuUsing M'i/ures. and for the preven- linu of the clandestine running of goods Into any part of his Majesty's dominions." Under this act. iuul hi-^ .\i;i|estv"s order in council of the 1st dii\' of June, I' the ollici'rs and crews of his Majesty's shij)sof war making seizures in Aiiierici, claiirt the moiety ol the net produce of iliose sei/.uri's, to he divided among them in the jiroportions mentioned in the said order of council. 71 i ! 578 OPINIONS OF EMINENT LAWYERS. Captain ILawker lias made a seizure of a vessel and cargo, at, New YorK, as forfeited on some of the arts of trade, which declare the forfeitures shall be divided in thirds, as aforesaid. _Can Captain Hawker, nnder the late -^ct, and (ho King's order in council, demand the moietv Ihv himsdf oflicers, and crew? We have perused tla^ la^e statute' nnd the roj il order, and do not observe any thin- in that statute, vesting in the officers and crew (he moiety of seizures made by ships of war in America, excepting the forfeitures by the last clause of that act; nor any virtual repeal of those laws, whereby the forfeitures were distributable between the Crown, the ( Jovernor and the prosecutor. The moiety whi.^h his Majesty is empowere.l to pro- portionate among the officers and crew, is the moietv mentioned „< the precedent clauses in that staCte and is the share the officers of the customs in (Irca, Hrifiin are ondtied to by ,h„ stat.t.,on s.izures made bv (iK,n on breaches of th" acts of (nide there. The other .art uC .,\\ and everv the ..el.ures &,- ,. the statute expresses it, ulneh his M.\r.t. is ,d.o ...i, powered to proportionate .s aforcs.id, u- Ibink can be cupstniedto.xtend no farther .ban to Hfct a divisi.,,, '" ^vbat..v..r other >h..... the officers ...d erew ...i... "m be entitled to, nnder the laws bv whi.h lb. seizure was made, which diffi.r in England and th.. p|..,„n.,ions nnd n>ay, pe, hap.s, empower the Crown to pr, |.,.rtionate' among them any part of his Majesi. s share we con coivc. that wlu.n.ver seizures are n>ade bv his .Majctv's sh.p« of war. the officers and crew beconu. enthled, upon prosecution, to the .hare« of the officers of the .usto . f=¥W OF THE NATIONAL COMMERCE. 579 and upon the whole, thereibre, are of opinion, that this lu therein, touchiuL;; earthenware. Ileport of .Mr. .\tiiii ncy-( icneral al>out earthenware. May it please your Ijordships; lis the .slatutt> of tin- ',\\\ Kdward IV. cap. I llic briii;;-- iiii: of any painted wares into this kinj^dom is prohibit- ed: whether the eai't hcuu.ir ■> in <[iicstion be painteiK-i not i-^ matter of faet, and, properly, by the law- (.if this kni;;dom, tiialile by .i jiiiy ; tlierefore, whether your liordsliips will think fit to have the matter determined 580 OPINIONS OF EMINENT LAWYEHS. « I bv a oortificate of the officers of the phice, wJiose intent It Ls to import them, or refer them to a trial hy a jm-v of this kingdom, whoso intent it is to obstruct the im- portation, I most humbly submit. Apn7 19,li}^0. ' Ckeswell T^evin^,. in. (1.) 2/ic ojjlnioii nf Sir Wii/lan' Joiu.'i, ,Sir F. mnmn,jton,and Mr. J. K\ng, in \(\li\. ,„: the s!-Jt»tc 2\.st Jamtii, of m')nn2>:>/ie.; hmr f.-tr u>, arfi;n woiiL' lir, in the Barha^hrs r.urr<, far ... hin:^ . I am of opin- ion, tiiat this proviso ,!o(h .-veiupt auy .'harter. ,i:rauled to any ^oeiety of mer.'hant^. lor tho niainlcnauce or or- dering .,f tnuK, froiu heing within the penalty ,,f (he statute; fur that proviso, as it d..tli not couhrm su.di chnrl.M's. hut h'aves th<>m to .fand and fdl hv (he .mui- ^^^'^^^ ''w, so it .loth uut Inlli..f any nrw j-e'iialh- npnn (hem: wh.'n-fonv I think, au action will not lie up,ai this .st.atut.^ for trel,!,. .laungcs for doing any thing m exccutiMii ot'surh charter. Qnare 2;— Tf any a. •(inn lie^ upon the statute, can if bohrou-ht in ,iny other <>our(s lu.t the kin-'s l.rn.'h. common pleas, or .•\ch.Mp,or at Westmin^t.-r, (li..Matu(e OK THE NATIONAL COMMERCE. 581 soemin^ to restrain the subject to those courts? It can- not Ik! brought within any of the inferior courts within Eno-huid ; but if the hiw of the Barljadoes doth enact oU statutes nuule in Eughmd to be of force there, (for a stat- ute made in Enghind doth not of itself extend to any of the foreiii-n phmtations, unless the statute doth particu- larly naniL" tluin.) then an action will lie within their courts tnere upon a statute made here, though confmed to the ])rincipal coiu-ts here; but, upon the ans to the lirst wer given OH'i-n. 1 th ink no action will lie upon this atute, for putting in execution this charter, but it will stand or fall bv the common 1; i\v 'jri'iu'iti Jo, lilTti. W.M. J one; The second q>,.. rr is out oT the c;ise, l)y the resolution ' the first ; l,n- if this statute, as to the recovery of treble 'xtci'.ds n;>t to the royal African company, ('as 1 conceive it doth not,) then no action can be bn^ught in Barbad'ics or anv where else. il,ini;i<^e \(ir< iih'jcf !(», 1117(1 F. U'i.\.m\(;to.\. I cnncei\e no act ion lies \i[)nn this statute against the company, or ah\ agent of theirs, for any matter done iix [iinsnancc of th barter. Xiiiuiithij' 1(1. 1(17(1. J K I.\G. (2.) -Ih, u) iiiinii II f the All>nicij-(r/_itrrS tiin/n- III I'iSij >■ iii(-< iiu'ihj iiitirlnpcn l!fp >rt nf (li,> .\ttorne\-(!eneral conccrnuiir ui terlo- 1CI' ill obi'diciice to your Majcstv'sord i| Nti\ ciiilicr, wliei('b\ 1 jnii er in cduncii, ol the Kith iT tii I he |it'' It HUl ( 'I'tlic Kavt I <'oinin;iiide(l to coiisid- n>li:i cunnia.nw and to le- poit how ill,, law -.(.inds.aud whet tion 111 lay be granted as IS (icsircd icr such a proidama- I huinblv conceive, . t 582 OPINIONS OF EMINENT LAWYERS. I tl'iit, bv li w. youv Maj'estv's .subjects ou.dit not to trade or tnillic witli any iulidel comitr\-, not in amity .vith yjur Majesty, without your licon;^o ; and that your Maj- esty may signify your pleasure therein, and require your subjects' obedience thereunto, by your royal prochima- tion. I am likewise of opinion, that the license given to the eomi)any to trade into India, with a prohibition to others, is good in law, and the penalties of forfeitures of goods may therein run upon any g(jods which shall be seized within the limits of the company's charter, as for breach of a lo-al law made by your ?'Iaic.st\-, which, I conceive, y ,,//• Maj,.s(,f .nay muhe in th': forciijii plnn- tatiom (IikI cil >nir< inhabited l>y your Majesty's subjects by your permission. I am of opinion, that your Majes- ty may issue ,-;rdi proclamalion as is desired. j\ur. 1(1, 1(,S|. , i> Sawvkr. (3.) TIr (,j,:itlu,j nf lj,r . 1 ftoriinj ,(!„/ .So/irifo,-( rciinyd, Ilirciiijf ir.ul M ,v.ntr:„,. uii //, chriuv, Earl of (iodolphin, Lord Iligii Tr(\isurer ol'cJi-eat Britain. May it plca-^e your Lord^hij) ; In obi'(li(Mic(> to her Majesty's order in council, of the 2S(h oi'.)ui\ list, u|)Mn l!ie petition of divers merchants and otlicrs her .\lajcsl_\s subjects of Scotland, who had, since the 1st da\ of .May ia>t. imi)oit.(i or lirouglit from that put of t; -cat Hritaiii into the port of Loudon, as Weil divers pj-obibitcd and inicustomablc goods, as divers (•ii>tomabi(' good-, all u liich had been seized as forfeited, by wiiicii oriier we were e(.unnaniled to call tlie parties concerned l»efore us, and endeavor to settle such a method t i OF THE NATIONAL COMMERCE. 583 of proceeding as inijrht be most expeditious for l)rinjring the matter aforesaid to an easy and proper determina- tion : we humbly certify your Lordsnip, that we have several times, in the presence of Sir David Nairne, heard Colonel Graham, Mr. Coole, Mr. Larrinrrton, and Mr. Stewar , (who took upon them to treat with us on the behalf of all persons concerned in the said petition,) as to the several matters contained in the said petition; and WG have, with their consent, agreed upon and set- tled the following method of proceeding, as the most ex- peditious and easy for bringing the matter in question to a proper and judicial determination. 1st. That oath be made, in writing, that the goods and merchandize in question were imported into Scot- land before the union, on the sole risk and account of her Majesty's subjects of Scotland; and that no English- man, or alien, was any Avays concerned or interested in Mch goods or merchandizes; and that sucli goods and merchandizes paid the duties in Scotland, due and pay- nl)le ihere, at the time of the inqioitation thereof, and were afterwards brought into the ])ort of London, mi the sole risk and account of such snl)iects of Scotland. lid. That an exact account shall be taken by such per- sons as the conunissioners of her Majestys customs shall appoint, in the presence of tlie i-roprietoi-s of such goods, or their factors, or agents, of the (piality of all such goods and merchandize now under seizure, touching which any Scotch proprietor shall desire the so'-mvo to bedi.scharg- ed; and that a roa.sonable and moderate estimate be ta- ken of the value of such goods. " I. That some merchant, or (ither porsoii, of sulficient ability to answer the value in a drcewrunt, inhabiting and settled within the city of London, shall take up the . 1 1 -H I f^t i I 584 OPINIONS OF EMINENT LAnVERS. M\ t said goods, and, hy writing under his liand. admit the quantity of such goods and niorchandizos to have come to hi'? hands and possession, and shall likewise admit the v:^ine thereof according to the said estimate, to the end the party taking up sucli go ds, aiu' admitting tlie (pian- tity and value thereof as aforesa'd, mriv be charued for the same by an information, on a (/cveiierrmf, in tlie court of exchequer, il l)y virtue of tiie articles of union, such prohibited a:ul u ..istomable goods, imported into Scot- land before the union, cannot ])e afterwards brought in- to any port of (a-eat Britain without forfeiture; or if customable goods, so imported into Scotland as afore- said, cannot be afterwards imported o,- brought into any part of Great Britain, without payment of the English duties. 4tl.. In such writing, the party signifving tlie same shall jikewise agree to appear to aiiv iufonuiition of a (/erriKiKiif, which shall be brouglit in tlie name o^ *''c attorney-general, or any informer as the atlornev sh.ill direct, and plead to any such iuli)rmati(m the iirst week in nex^ term, or as soon after as the attorney-general shall think (it, so as the merit of the case mav be then, upon such trial, Juilicially determined ; and (hat such agreements, as to the party's admission of (he (|uau(ities and values, as af )resaid, and as to the jiartv's consent to appear, plead, and take notic^ of trial as al()resaid, be made an order of ♦lie court of exchequer, the first day of next term; the attorney-general consenting by siicli order, to admit the importation into Scotland bel'ore t'le said 1st day of .May, and also to admit the Scotch proj:- orty. 5th. That su-jh o;',th be made, and an account taken of the quantity of such goods, and an estimate made of OF THE National commerce. 585 the value thereof, and such goods beina; taken up by- some such responsible person as aforesaid, who shall sign such writing, as is hereinbefore contained, the seiz- ures of the said goods may be instantly discharged, the ofticers who seized the same consenting thereunto, if your Lordship shall be pleased to approve thereof. August 18, 1707. Sim. Harcourt. Jas. Mou.ntague. (4.) 2 /le opinion nf the Solicitor-General, on the Amer- ican act, (.stah/i-sliinr/ the co.sc of priz'. du ing the war of Queen Anne. By an act, the Gth Anna Regina, entitled, "an act for the encourarjementof +'.0 trade to America," by the sec- ond clause, it is enacted that the ting otficers, command- ers, and other olheers and seamen of every such ship or vessel of wai , liall have the sole interest and property of, and in, all uid every ship, vessel, goods, and mer- '•handizo, Ihey shall take in any part of America, (being iirst adjudged lawiiii prize in any of her Maiesty's courts af admiralty, and subject to ' > customs and duties pay- able t ) her Majesty, as if . ame had been first im- ported to any part of Great Britain, and from thence ex- ported tor, and in respect of, all such goods and merchan- dize,) to be divided in such proportions, and after such manner, as her Majesty, her heirs, and successors, shall think fit to order and direct. ^'he next clause lays the same duties upon prizes tak- en by privateers. The Case. — One her Majesty's ships of war, or a privateer, takes a prize in America, and condemns her in oneof herM. sty's courts of admircUy, and the said prize is carried into one of her Majesty's ports of America. 75 H ' : t I 58G OPINIONS OF EMINENT LAWYERS. in Qk^ic 1. — What (luties the captors ai o to pav in this case, whether duty payal)le, as if the g )i)ds in question were hvnded in Eiij^land, or whether so much only as would bo left in England, if the same Avere exported from hence into jmrt.s beyond the seas? N-J.f. — That the difference of the duties will plainly appear by the annexed i)aper. Ans}:'cr. — The goods that are tii.is taken in America, and carried into any of the ports there, I take to be chargeable with such duties as would be left in England if the same had been exported hence after an impnr' »- tion hither. Qi((/ri\ — Another question doth arise upon thi.Hclaitse, whether the duty that is to le taken, is to be the nrize duty, or the duty as if the goods were imported by way of merchandize 1 Annver. — Goods thus taken in America must Ije looked upon as prize goods, and cannot be said to be imported by the captors by way of merchandize: therefore, I do think, the prize duty is to be taken. Maij 25, 1708. J. Me ntague, (5.) Hit' opinion of the S )Hdlor-Gc 'CnJ, Thiirv^nn, re- lating t) a duty laid, in Carol/ a, np >n Biitish commnd' ities. Sir: In obedience to the cor.iraards of the Lords Commis- sioners for Trade ana Plantations, signified by yours of tlie 2Gth of March last, I iuive considered Colonel Ilhett'a letter ; and as the law inentioned by him, laying a duty of ten pounds per cent, upon British goods, seem" very extravagant, and may be rei sonably supposed to be at- tiuded with the consequences he mentionr. I think it OK THE NATIONAL COMMERCE. 687 may bo truly said not to be consonant to reason, and ag this duty is so heavy, it may prove to be sucli a burthen to ti-ade, as to be in effect a prohibition (.. it to the Brit- ish subjects, which is by no means agreeable to the hiws of Britain ; I therefore humbly apprehend that th^- -)o\v- er of malving laws, by the charter to the proprietors, is. in this instance, excoed-d. It would be too tedious and too expensive for every particnlar trader to contest the ^)aymentof the duty upon the supposed invalidity of the act, asbeingunreasonal)le,ai.,: if determined against them there, to appeal to the King in council ; but if the mcv- chants fnid themselves aggrieved, I presume they will complain, and then, upon a petition to the King, the proprietors w^ll be heard, and if they do not consent to remedy the grievances, a prosecution maybe ordered against them and their charter, nor will the complaint be improper in parliament. April 5, 1718. Wm. Thompson. (0.) 2/te sai.ielawyer'.s opinion on chc^^sing t -.rcasurer of the factory at Lis')on. Sir ; In obedience to the commands of the Lords Commis- sioners of Trade and Plantations, signified by yours of the 2Gth of this iuotant, March, I have considered the patent to the consul, and the powers to choose a treasu- rer ; and I humbly conceive that, if any of the mer- chants there refuse such an office, or any other put upon him by the consul and factory there, the consul may re- fu.se to be assisting to th:it merchant, or to protect his ettects, or to let him have ain' of the privileges which he allows to other merchants there ; but there is no method prescribed in his patenl, to inflict penalties, or i 588 OPINIONS OF EMINENl LAWVERS. r to levy them, for such refusal of offices, though they are necessary to support the society ; and, therefore, I think the consul's power defective in this particular. March 30, 1718. Wm. Thomson. (7.) I he opinion ufiheAWmiey-Gmcml, l{,jdcr,onthe ca.9€ of distn-.9mf h'n^j/i.^'t seamen ctt Cadi:. To lii.s Grace the Duke of Bedford. May it please your Grace. la obedience to your (irace's commatKl., signified to mehyMr. Al.hvorth s k-tter of the Cth instant, repre- senting that the innnbcr uf ships cast awa v in the nei.d.- borhood of (Jadiz, -having occasioned so nianv sailors to apply to Mr. Cons-,1 Colehrook for relief, tlmt the ,ii.- burson>ents hs has found it his duty to make, to prevent their perishing, or being oblige,! to enter into the ser- vice ot S,>ain, has so tar exceeded what he has been able to colh.ct ol (he contribution settled, hy the a,.t of ,,ar- Ixan.ent, in 17n.i, that he has thought himself obliged to •"■-vavery irregular b,ll on your Grace f^.r lo'i;) dul- 'ars, loput Inn. u.acondihnnfogoonwahthisneces- ^Hrvexpenscalso in.do.ing the letters Iron, the eouMd "l"'-. t us oeeasion, and desiring n.y cr,,i„i..,. „,„,„ ^.^^ •"H iHKis he UK, V n.ost legally and pn.perly pursue, in or- '^'''' *""'''"'"""• l'^'>'"""t of the dutv settled bv parli. 7"' ''•'■"'"■'•^■"•■'•'" "'-list. -osseu seamen, and. ..ee <'"""">"'.V appropriated to th.t use for wh.rh i, u... ,„ tcMuled I have cu.sid.Te.l th.. ,.,i., („,,,„„,, ,^,,,^,_,^ (winch are herewith nlurn. 1), and Ida^sise reviewci a rq.urtlu,ade upo„ a lormer reference ..la t,. tho ffttne matter, in vour (irace's letter in (i...,.h,... p u, :„ >vhich I have «Uaed, that 1 had considered the inatte'n OF THE NATIOXAr. COAlMF.RCE, contained in the said letter, and find two thi plained of: on.e, tiie unequal distribution of th collected pursuant to the act of the 9th of h Majesty, chap. 2-j: the other, t! 589 ns^s com- nioney, present IS 10 evasion of it. by get- ting clearances of >Iii[)s without piivnient of the dutv. As tli is is a law to 1 te earned iiilo cva'cntii'-i in a for- oininions, I do eign country, not within his Majesty's d not sec any method that can be tidvt'u liere I in^s inlaw, to reuiedy either of tlie ,Ln-iev;in(Hw. As to the first, it >y proceed t\' III the (1 )uti(> seeming to be tb-^ clT.'rt of partialis •ho iiave the nowoi- of (listril)ution, can be regnlaied only by iutfiKMiniiii- them to act in a more iipi-ight impartial mannci- chants to choose other depulies, wl the execution of tlie trusi or I'jiLrMiiinir the mer- II > wil more just in As to the latt er tl K' (•hMraii''i>< from the in the power of the Si .rt I )einfr ;iiiish ollicers, it d )es not appear to me what nu'thod can be usod to prevent the captains lips from havin-- them before they p.iy the dues di- rected bv tl le act, but by interposition ol" (1 le com-t of pain, in directinir and obli iii(r d,, them to the Kii'disl ir otlieers to ileliv er 1 consul, in order to be detained by him till the iici is complied with. As to wh;it is proposed of directing tlie e.iptains of ships to deiiv.r their Medifrranean passes to the consul security for pavii.g the diuw^ | ,1,, ,„,, know how siieli an onier e.ni he enlorcei Ullle >v iiiakiiiir it a 'oudition Ol, which the validilv of tho>.- passc-^ shall d, p<'i).I, that thev >hall I le so (leliverei ami 111 L'red. re-(ieli\- without conloiiiiing to the act. of W inch t pul, or sonu» deputy for him. t le coii- wluif mav be M I III. live eildoi>e|llciits; but K' CI III -ei|llence o|- i| H'onveiiieiK ijig the force of the nasses to d( 'f mak- I'eni! OK this, 1 am not iNi I »- I J 590 OPINIONS OF EMINENT LAWYERS. able to judge; and, perhaps, it may 1 the opinion of the hoard of trade upon the whole, what proper i,o take may he fittest to he dc^ne, t in ini-.tter in which the trad o remedy tlie inconveniences e IS so much concei 3rned. Fdn '» uavii, 8, 17")0. (8.) Mr. /• D. R V.VDER. am opiiiioit o:i lltcpnrilvuesof t'lc li IIS- 6ia ccmjMiiu/. an-rijiiKj on a trade to An/itni a. To the Riirht II Trade and Plantation^ onorahle the Lords Commissioners for Mv Lorrivilc-vv tiicrciu grants to the said company, partirularly tho-c of im]>orling through lUi.ssia the pro- duce and mauufaclurcs of Armenia ma {or or i uinor, .cdia, , l\ icani.i, Tcrsia, or the ci)untrie-( 1. trdering on io ^till suhsi.vt, notwithstaiuiiug the the (,'aspiaii Sea, acts of na\ igat ion C(Uhpany, coiilinncd l,y acts of parliament suh.se(juent to aiHl the alter of tin t liid have considcicd the -cvera 1 cl lar- the Uiissia <'liaitcr ter-;, and the an o|' navigation ; and 1 opinion, that the privilrgcs granted to the Russia ci)in- •paiiy. nf iiiipnitiiiir llirom;h Russia the produce and am liuml)lvot iiiii iiulai tlU'i Ilia. 1' -f .\ tl niieiiia. major or minor. Media Ilvrca- ei-Ma, or t lie coiniti II )orili I iug (in tile Cas] iiaii sea, cea.scd \i\ the act of iia\ igation, liy which all good,- of I'oreign growth iiw' maimlacliire arc prohiliited under severe penaltie-* am. toi |'eitiire-i, from hcin;; hroiiudit in- to K and, Ireland, iSjc. Iroi 11 any [ilacc or places, coun- try or countries, hutoiiiv Iroui liio^eof their said growth or manufacture, or from lliost> ports where thcuid gfxnls or THE N no.NAL Commerce. 591 can only, or are^ or usually have been first shipped for transportation, and Ironi none other places or countries; this subsequent act of parliament, 1 think, therefore, very fully determines chese privileges ; but if there could be any doubt upon it, I apprehend the subsequent exclusive charter of the P^ast India company, confa-med by act of parliament, wherel)y the sole trade to th 'se countries is granted to that company, entirely takes away all pre- tences to those prior privileges. June 17, 1731. Fran. Fane. (9.) 7//r opinim oj ti,' Alt>i,iey and ^S >Uc'it>r-Gener- nl, Rii'Ur and Strange, on the act of Georgia, alGul t ade with tlic Indians. To the Right Hon. the Lords Commissioners for Trade and Plantations. My Lords ; ^^ e have consid* rod (lie r/^/rovV.s' sent tons l)v \our Lordships, ill Mr. l'oi)ple's letter ofthc 21st of June last, the first of which is, Svhetiirr tlic act of the trustees of Georgia, or of any assenibiy, p,i-.-ed in tiic cojunies abroad, and contirnied by the (,'rown, can grant to any of the said provin.'cs an exclu-ive trade with th(> Indians dwelling within the respective ])rovin((.>. ' S.Ui\, ns to that, we ;ne of opinion that as an ab.solute exclusive tiadt> with the Indiaiis would !ie destructive of that geiu'ral riglit of tradin- wliicji all Ids .Majesty's subjects are entitlfd to; and, tlicnMorc, repugnant to the laws of (Ireat Ilriliiin, no iwi of tiie trustees of (ieori',rc, which is, whether the art above mentioned excludes all persons whatsoever, whether inluihitaiits (if Gei-rgia or !iot, from trading with the Indians settled within the bounds of the pro- vince of Georgia, as described by the charter, except such as shall take out licenses according to the direction of the said act; we arc of . .pinion, that the act therein referred In does exclude a' persons whatsoever, whether inhabitants of (loorgia or not, froni trading with the In- dians settleii within the b •umis of the province of Geor- gia, as described by (he charter, except such as shall take out licenses acconling to the direction of the said net; that act and the reason of it, extiMiding t) all per- so;»,«f //''(Wvorrr/', and such taking out of lic.'uses brin" no more than ap.vper regulation of tin- trade within tLj said province. JuUj 28, 1737. D, RvDEH. J. &TR.AXGE. (10.) Mr. Wesf^ opinion on unmc. nel.9 of South Car- nlina for rr,pil^hips, that, upon the occasion of this .ict. I have bccu jittendeil by .lohu Carter Ksij, (agent I'nr the |iro\!iicc of N'irgiuia,) who has represented to nil' tlijit till' iuhiibitants (A' that province have long ca.- ried on a C'Misiderable trade with the snnu Indians, the trade with whom is intemii'd to be rci dated by tins act, ami that in carrying on their snid trade, they are obliged to curry their goods and merchandizea tluoutih the utter- 70 f 594 OPimONS OP EMINENT LAWYERS. I" rt most parts of tlie province of Carolina, which arc, at least, four or five hundred miles distant from Chai.'es- ton; and tliat the people of that province do apprehend that their trade will {,o ccmsiderably affected and pr-ju- dicod by the general words of this act. And, in relaticm to this representation of Mr. Carter (in case that fact is true, that the inhabitants of Virgin- ia are obliged in their carrying on their trade, to trans- port their goods through any part ..f the province of Carolina,) I am humbly of (^pinion, that those Virginia traders will be (by virtue of the general words of this act,) obliued to take out licenses from the commissioners of Charleston, and to coniorm* themselves to all such re- gulations as are prescribed in it. I submit to your Lordshins, whether the difliculties and hardships hereby imposed upon the iniiabitants of Virginia will not anicM:! to a total prohibition of their trade with those IncKaus who are the Mibject matter of this Carolina law ; >in-'e every Virunnia trader will be obliged to travel near live hundred mdcsout of his way, in order to r,btai.< a Carolina license, f..r he nmst be per- sonally pres;>nt in Charleston to enter int.) bond, ere he can purclK,M> (hat fav-.i : !„> nust come there precisely rly sessions of their com- missioner,-^; and i! by ^ickne.s-. (!„> |iv.iu,Mit oserllow- iiigs r.f rivers, or any othor accident in his journey, he happens to miss (liat ..pportnuity, lu- must then 'wait three months before he has another; and all that while, himself, bis s(>rvant«, au.l horses, laying idle .m expense,' an.l his go,;d.s liiiiil.' to ,„.,i,sh . Ik- nmst und one to be securitv with hiu. in a bond of tliiv biuidrcd poiuid ; penalty at a jil.ice wb ic he is an entire stranger; he luasl pay an aniuial tax of ' ent_) -three pound.s for oh- OF THE NATIONAL COMMERCE. 595 tainiiig lii.s license and, whicli is still worse, he is to for- feit liis bund on the least transgression of laws not pro- mulgated at the time his bond is given, but to be made occasionally, according to the sovereign will and plea- sure of three persons called commissioners, vested with an unlimited power of declaring whatever they think /it to be law, and judging definitively upon what they please to call a breach of it ; exposed to be condemned in as many .vuuis of ten pounds, as complaints shall be made against him, and convicted upon the evidence of an Indian, and that, without the beneiit of a trial by jury. Besides what T have now mentioned, I must beg leave to observe to your Lordships, that attempts of the like nature with this bill have been long the occasion of dis- putes between the two provinces, for as lam inlbrmed, in the year 1708 thei'e wiis a complaint made by the jirovince of \'irginia against the government of Caroli- na, for seizing the merchandize of several t)fthe Virgin- ia trailers, and coiupelling (hem, in an aibitiary manner, to pay a liy ihc inhabitants of Virginia; which repui't nf tlicir Lnrddiip- was afterwards conlirm- cil b\- hi-r Maji'-ty in ciamcil ; nut withstandir ^ which, the govcnim'ait <>1 Carolina dii, within about a year after, think lit to pass an act, (Mititled "an act to oblige tliM-i' tiadi'rs, that cnine linrn NiiLiinia to other neigh- bouring colonies to trade with tlie Indians or white })er- Is !^ 696 OPINION GP EMINENT LAWYERS. eons living within this province and government, to come first to Charleston, and take out licenses to trade, ami to be subject to the like regulations, and to pay the same duties of import with the inhabitants of this province and government, who trade with tlielndians living with- in the bounds of the same. By which act, they ditl en- act the substance of what is passed in that m' ' -li is now under oonsideration; against which act, th aid then Lords Commissioners of trade and ])laiitations did like- wise make a representation that it was m)t proper to be passed into law ; upon which, l)y oriler in council, dated the 8th day of January, 1712, the Lords proprietors of the province of Carolina were coiuniaiided to take care that the last-mentioned act should be iumiediately re- pealed. My Lovds: The greatest diflerence that 1 cm observe, between this act of 1721 and that of "171 I. is. dial in tlialot 1711, the Virginia traders arc expressly nauu^d and the duty openly and avowedly laid upon tiiem; Avhorcas, in this act of 1721, the Virginians are only comprehended un- der general words, and not particularly mentioned, Wn- it is enacteil, that if any person or persons wliatsoevei-, other than such as didy obtain licenses in the manner as in the act particularly mentioned, ^-Imll o sued I'm- and recovered in such manncu- as in the act is directed; and the inhabitants of Virginia. ii(it beiui,- able to carry on their trade without jiassiug tliroii'.di some of the re- motest parts of the ju-ovince oT Carolina, 1 aiu of ooin- OF THE NATIONAL COMMERCE. 597 ion, that thoy will be comprehended in the general words of this law, and will be disabled from, or, ^.t least, very much disturbed in, carrying on their trade, unless they shall first (under the difficulties I have above mention- ed) take out licenses from the commissioners of Charles- ton, according to the directions of this act : and if I may in any manner depend upon such information as I have received from the agent of the province of Virginia, it seems pnjbable that one of the chief ends proposed by the framers of this act was to comprehend the Virginia traders, hoping that they might, by the means of gen- eral words, compass what they had formerly, to no pur- pose, attempted in express terms. I must own, that what I have now laid before your Lordships, is chiefly founded upon such informations as I have received from the Virginia agent, but I was in- duced to give credit to his accounts, because what re- lates to the former reports made by your Lordships' pre- decessors will appear ))y l)ooks in the otlice; to all which I would beg leave to add, that )K>lbro I thought it prop- er to make a report upon the Virginia infonnations, I seat word to Mr. Francis Young, (who is agent for the provin(!e of* (,'arolina) to let him know that the agent of ^'irginia had lodged with me objections against this act l)eipg passed, in onier that he might have an opportuni- ty to lay l)et'or(> me ,-uch reasons as he should think ])ro])ir to urge on i-LhaU'ot' tiie pfo\ luce of Carolina, and in deli'iK-e of tliis law lint he nevrr '.bought fit to lay before luc, either in v,-riting or otherwise, any consider- ations m- reason-; whatsoever for the passing of the said law. l''nr llicsc rcasdus, Iherelbre, 1 am luimbly of opinion that this act is not ])i-oner to be passed into law. . • 1 m 598 OPINIONS OF EMINENT LAWYERS. I have also perusid and considered the several otlier following act^^, entitled "an act Ibr a most joyful and just recognition of the iuunediate, lawful, and undoubted succession of his most sacred Majesty King George to the Crown of Great Britain, France and Ireland, of the province of South Can)lina, and al' other his Majesty's dominions;" "an act for establishii" the tranquillity of this, his Majesty's, province of South Carolina;" " ar act for confirming and continuing the several acts there- in mentioned, and for collecting the arrears of taxes, and conlirming judicial proceedings in the courts of law;" "an act for preventing the spreading contagious distem- pers;" "an act for the speedy recovery of small debts;" •'an act for the better settling and regulating the mili- tia;" "an act for cstablisliing a court of chanceiy in South Carolina ;"" '• an act for maintaining a watch and keeping good order in Charleston ;" " an act to alter tiie bounds of St. George's jiavish ;" "an act against exces- sive usury ;" "an act to empower the commissioners of the high roads, Occ. to ;dter the same lor the better con- veniency of the inluibitants;" "an act for appointing agents to solicit affairs in England;" 'an act to ascer- tain the manner of electing memljers of assembly, and to appoint who shall lie tleemcd cajuble of choosing, or be- ing chosen, members ;'' "an act for e>l;il)li-hing precinct and county courts; " -an act for ascertaining [)ublic of- (ices, fees, li'c. ;■' "an act for erecting the settlement of Wineau, in Craven county, into a distinct parish from Saint James's Santee, in tlu' >aid county;" and •;in ace for re[)airini;' the t'auscway, leading to Asliloy river, ter- ry, &c. and for vcstiu'c tho I't-rry iti Cajituin Edmund Bellinger:" to all which, 1 lave no o!)jection to their being passed into law. r A7. -:•), I ( . iK H. ^\ EST. OP THE NATIONAL COMMERCE. 599 (11.) Mr. Wesf.9 opinion, relating to Custom House officers heivg concerned in trade and shipping. To the Right Hon. the Lords Commissioners for Trade and Plantations. My L(n-d,s ; In obedience to your Lord.shi{ :.s' commands, I have con- sidered of the statute of the 20tL of Henry VI. chap, 5, by which it is. enacted '4hat no customer, &c. shall have a .ship of his own, use merchandize, keep a wharf, or inn, or be ii factor ; ' and I am of opinion, that the said stat- ute is st'U in force. This statute Avas doubtless intended (as is manifest froni the nature of the mi.schief mentioned in the pre- amble, and which was to be remedied by it) to extend to all custom-house officers in general ; but as great al- terations have been made in the manner of collecting and managing the customs since the time of this stnt- ute\s being enacted ; and as no penal statute can by law be extended, by an equitable construction, beyond the express words, I apprehend, that in case your Lordshipa should have any thoughts of making it applicable to all the custom officers is they stand at this time, it will be necessary to have a bill brought into parliament for that purpose. Nor. 2(], 1720. R,cn. West. (12.) Ihc report tt the King, nf the A ttorncy and So- hcitor-(hncvaJ, Northey and Ihoinpmn, on a 2)roposed charter to a corporate hodij, for insjtring ships. To the King's most excellent Majesty. May it please your Majesty. In humljlc obedience to yoiu- Majesty's commands to !i ,'i II 600 OPINIONS OK EMINENT T.AWYEKS. !f us, by your c.der in council, dated the second day of February last ; we have considered of the annexed pe- tition of Sir Justus Beck, and two hundred and eighty- six others, in behalf of them, cives, and of several others, merchants and traders of Great Britain and Irclund, whereby they represent, that the merchants and traders of your Majesty's dominions do frequently sustain very great losses, lor want of a.i incorporated ct>mpan\ of in- surers, with a joint stoc]\, to ma'c! good all such losses and damages of ships and merchandizes at sea as should be insured by them ; that the establishment of such a company, by jour Majesty's royal authority, will bo :i very great security and encouragement to trade and nav- igation, enable the merchants to make quicker returns, employ more hands, increase the numbc of seamen, greatly augment your Majesty's customs, and preserve many of your good subjects and their families from that ruin to which they are now exposed by being assurers in a private capacity ; that they have entered into a voluntary subscr-ption to raise a fund for erecting such a company of assurers as may eftectually make good all the losses assured by them, (which will in nowise inter- fere with any other corporation), and ha\ uig a sufficient sum subscribed for that purpose, they most huml)ly pray that your Majesty will be graciously pleased to grant your royal letters patent, for incorporating- them, with such others as shall subscribe thereunto, and their suc- cessors, to enable them, by a joint stock, to manage ami '..irry on the said undertaking, unvier such rides and reg- ulations, by such name, and with such jjowers and priv- ileges for their better government,- as your Majesty in your great wisdom shall be pleased to direct, not to ex- clude particular assurers from assuring shi[>s and mer- VAAC«A4t-4AA4W MO VA1,\,J Ak\J t» \X\J, 0>' Tl-J NATIONAL CuM.MERCE. GOl As we have .li- .^u.^iu rerl of the annexed petition of Sir Gilbert He t)_ .jio and three hundred and seventy- five others, mercii;.uts and traders of the city of London, on behalf of theiustdves and others, merchants and tra- ders of this kingdom ; whereby they represent, that for the promoting and encouniging the trade of tliis nation, it hath lieen found absolutely necessary to make insur- ance on sln'ps a ^ '-oods at sea, and that at as low and moderate rates ..s possible, wliicli is a very great ^dfie ami benel't ^ i trade; that a number ;)f office-keepers po the exchan^. at London, who act as brokers, have, for a great many years past, made it their constant business to pro. ire persons of good substance to insure and un- ilorwrite policrsoi,s, as they shall think fit; and, thrrcfore, it will alwavs betiic interest of the corporation to insure on nmdrrate lei us; ai'd the incorporating insurers will l)e an ense to tli..se ho insure with them, for that the corporation i.^ one ..^pinst wlioin ;he suit mnv be broiigiit , ubrreas, if twenty or thirty were to join in a partnership |( insure. every (uu« must le named in av -um to be brmiirlit against them, that 'he insured will have In-tter secnri- O'.^ THE NATIONAL COMMERCE. 603 ty from a corporation than they .an have from particu- lar persons; for thi.ta million oi laoney is .subscribed by the subscribers to be the fund of the said corporation, whereby there will always be a fund to answer their policies, so that there is no probability ot the corpora- tion failiig ; whereas, as the present use is, many of the insurers continually fail, and there is no deposit what- soever to secure their insurances. To avoid which, this corporation with a fund is projjosed ; besides, the pres- ent insurers, over and above the ten per cent, mentioned in the common policies to be abated, will not pay with- out suit, unless a further abatement of six pounds per- cent, be made; whereas, if there were a corporation, they durst not iritle or delay as private persons do, but nuist immediately pay their los.ses, for the credit of the said company : and as to the dithculty of making a corj)()ra- tion U) .ipprai to suits to bo brought agaii st them, they propose tli;il their incorporation shall be subject to be dt'tcrmined ' i\ your majesty, if they do not appear as .eadily as private persons -re obliged lo do. •Vnd, by tin- aflid;ivits .. .iiexed t . the petition foi- the I'liiirter. .lobii Kiiimct depose«, that he has for several I'iirs Iradi'd to Holland and Ilnmburg' , and has not • nade ot,e insurance in (Jreat Hritain. being of opinion that '.lie iiismcrs would l)c -ali'r and cheaper at Amster- ilaii', and lli.it ih(> .-amc, or tln' grc'icst part thereof, have lie. II constantly made 'here; ,intl Kobert .la('Us(>n, clWuiHterdani, merchant, nid .Inln ( Jascoign, of Hofter- (lam. morihant, scerally depose, that it is frc<|uent anant.s there, an.> olfen discoursing of a subscription then going on at London towards a fund for insPring ships and merchandize, they very i.mch appmve oCtl^ project, believing, if completed, it would l>e a bet, tor security for (he insured than anv i,u>thod now u, practice. The counsel for (he petitioners agaii.st the incorpora, tion insisted tliat tlie subscription is made onlv for the salve of stock-jobbing, and if a cnrporati.m sliMild be erected, there u-iU be another slock to transact, and up- on tiie view of the subscribers, verv mu,.h the greatest l""-( thereof being of .ntferont trades from tb,. tra.le of uiercU^UKliziug, it is , 1, .,t that that is the -leMgn, and that (liere is no iea>ou to iuciporate tlie sai.l "ub the ntility and couvenieiicv of the proposal Wseli:-cv,dent, that iu^unnic of ships is m-cessarv tbr '"■•'•■;iM trade; and if the present meth..d U" nut found ;;'^'>;'>^-^-"H.nt, tl'ereisnoreasontosetupacorporati.u, ''>'-"'snriug; besides, that b^ the present method man v *•'""'"" "■•■ ■^"p,Hn|..d, and tb..renni be,.,, n^son to vl<-tnn th.m wuhunt absolute rec.sMlv. All .„• ti.e g'valesf ,„.nt of thr petiti.mers against ll... said .1. ufr are menbants. u hn a, e to have tb. beuetit of ,„ nran- ce8iaudtlH.M.|;,nMiH.N insist, it is ,.as„nabl,. ,„ b.lieve '''■''"'''"■'"■ •^"'-"^v"nbi..ea pnbhrben.li. tb.-vuonld n-.toppn-.. 11... .,,ne.;,nd.iHn:d>uin>,M tbal .1.;. Mietb- '■' ..I nisuiance ,> nun .,n as good a foot as it r,,u !.• put, that • I.e n>.u,aure ...now lower he-e than in any country in Europ<., and lb. thai rea.M-n verv main (;,; "iirn MM baoi^ make their insurances here; thalumr OK THE NATIONAL COM.MKRCE. 005 Majesty cannot iriake a monopoly l)y granting to a cor- poration the ,s()lu power of insuring, exclusive of others, notwithstanding which, the granting such corporation will, in eunsecpience, end iu a nionopoly: for, if such company as desired should be erected, h^i'-ing so large a stock, they Avill in all probability insure very low at the beginning, to bring peopU- to .hem, and thereby discour- age the present method of insuring, and oblige the peo- ple who aic now concerned therein tu leave ofl' all tiionghts of insuring, and then the company would put such terms on tiic insured as they should think fit; and from the nature of insurances, the more phiccs the bet- ter, for if one will not insure, another may; but if the present insurers >houl(l be suppressed, and the corpo...- tiou be the onl\ i)lace, llu-y will insure oidy on their own terms, iiiid there will b. other place to apply to; ;inil as to the objc'ction tb;it the credit of the corporation \.ill ])r ( incern.'ii, it was answci.si, that a corporation has no sense of shame as private persons have, and will •^tand out suits longer than private persons, be<'a use rich- 'M-. H.'sid. >», the dis|)alch of a corporation will not be like that of private persons, they may act but at certain hoiu-s, may k.'ep liMJydays, ami in (lisputal)le cases, may make rcfcren.i's, and rxpect reports which ma\ ocea- ■■iou great dila\s, which is not |)racti(;il)|,. Jn insurances as now managed. And, bcsjd,.^. alter thev have dis- coi,raL'c(l other insurers, if they should then insure only at then' own ral.-s, it will b.- of np'it inconvenience to TiiendMints: and as to tlir oi.irction that private iuMuvra "Ibn l.nl. It was. Slid, it cauiint !.,. made appear but the '"iiipany Ti-iy -top pMriuMiiiv in case of a war. and it would bf of infinite iiicoiuciiieu' e to trade if the method "i insurance should piovi' impracticable; besides, in ca- 606 OPINIONS OF KMINENT LAWYERS. |i ' f* I ses of insurances ii.s now used, the body, land, and goods of the insurers are liable; and, in ease even of an exe- cution against ;. e()ii![)any, it will be very difficult to find where to execute the same ; and further, that the com- pany cannot be prevented from diverting their money to other us •;. They also produced several merchants ; and Mr. John Bernard declared, that at i)resent the best mei. upon the exchange insure, and very few Knglisiunen insure abroad, and many ibreigners make their insurances here. Mr. Shephard atliniied, tlu' insurances here are made very easy and „u better terms than abroad, and, for that reason, many ibreigners insure here and few English- men abroad. Mr. Ilfy>bam dcc]:in«(l. that there is no complaint at l)rescnt oftlie ins'-raiices here, and the .vetting up r cor- poration will make tiie p.cscnt iiisin-ers leav(> off their impiirio into the natuiv of .-hips :ui>' their voyauvs, \vluTcb\ the\ ui.iy tiic better know how to insure, uiiere- by the whole business will tall into tlu' corporation, Mr. Morris, .Mr. Cn.HVey. Mr. Chester, .Mr, Harris. Mr. ivat- cliffe, Mr I'eriy, and Mr. ilinkli', ai! agree, tiiere is no wcasion Ibr a eor|)oration, but that tli.> same will be prejudicial. PvtheaHid,ivit>< of Koi - rt .\ston. .lamt's .M. ndcz, and (J. 'I', (Juigier, annexed to the Metition agiiin.st the incoi- poriiliun, it appears that great insurances have been from time to time made lieie on iiceonnt of IbreigjuTfi, on ships at sea, lor vny great sums (.f money; which insurance^, .Mr .Vston deposes, were m;iile at low and ♦•asy rates, and idieiipc r than at any otiier idace, Aiui. he furtli.r ,says, that fbr the most part In- has been al- GU7 OF THE NATIONAI, COMMKRCE. lowod by hi.s correspondoats after tlio rate of one cent, and half ;w rent, for standing hound for tlio inssur- ers, ovtM- and above the ii.Hual ullowaneo of half y.^;- cent. for oausin,r r, lit. and Guigier deposes the same. To which it was replied on behalf of the jietitioners for the corporation, tiiat it apju-ars t be mercliants are divided in tlieii- opinions (ui this matter, some ludnj; for :nid others agninst tb- corporation; and, that it is plain ftCom])aiiy would be UM'tiil to the piddir and to tiaue : for tliat tlie policies would be sooner done b\ a corpora- G08 OPINIONS OK F.MTNFNT T.AWYKf'S". I tion than In* the several persons avHo how undorwrito policies; and that the security would he better; and it is plain that the present offices may 1,^0 o'l as well as the corporation ; and where insurances are cheapest, there will he the most custom; and if the C(M-.ipany should in- sist on unroasonahle deductions or delays, no person will insure with them; and that it is plain, if the jrrant will not make a monopoly, the "onsequence will not make it so; and if a corporation he erected, it will be the inter- est of forei iu^nreis. On the wiiole matter, it is agreed on all isidi's, that the insuring of .^hips is ..I' ab^,,li,ie n.-ees.sity H-r f b.' earrvinu on of foreitrn trade, and (hat tlic .snue bus been always managed in the inetiiod the same is now in; and it has i>(m' beiui made out that then- i.x any cor])oration in Ku- rope l'o>- iu.suring sjiips ; that the want of a good method of insuring \sill be very littal to trade- : and w<'are hum- ltl\ of iipiii'DU. that tlie making an e\peiiiiient in a tliiuir of this nature, if it slioidd luove ami-s. \\,>\i\,\ bed' ||„' utmost r<.n,seqneiiee Ic.tbe trade ..f this naiiun. Murl tli.ti it so lii'jhly concern* trade and cunnueree thai it willl.e OP THE NATIONAL COMMEItCK 609 proper for the consideration of the parliament; and, therefore, we cannot advise the erectini^ a corporation foi- the insuring ships and goods at sea, against which there arc so many - icat ohjections, especially the meth- od now used being appi'oved of both at home and abroad; and we are not able to determine of what cunse(|uence the erecting of another corporation in London, witli a stock of a million oi' money, may be to the puldie. The petitioners for the corporation have laid before us several heads for a charter, if yoiu* Majesty shall be gra- ciously pleased to grant the same: but the .-mie not having been referred to us, and the opponents opposing a charter in general, they did decline entering into t)ie consideration thereof, and, therefore, we have not pre- sumed to lay the same before your Majesty. March 12, 1717. Edw. Northed. AV.M. Thompson. (13.) 7nc o/niiion of the Att')rncy-(frmral, Lplc, J„„. your secretary, I have con- sidered of the in.osed papers mentioned in the annex- ed letter, and do humbly certify your Lor.lships that the value of the foreign cf)ins is well cstablisl'ied by her Majesty's proclamation ; and the tender ol the same, according to those values, is a legal tender, and every ri OF THE LAW OF NATIONS. 611 body is bound to take them at those vahies ; but if any person (as the persons comphained of do) will accept them at f,'reater values, I do not know that it is any oftence, being to the prejudice of the receiver, none be- ing obliged to take them in payment from him at more than they are settled at by the proclamation. This mischief we labored under here in England, till by the act of the (Jth and 7th William it was made an otlence to take broad money at more than it was current for, and I am apprehensive this mischief will not be remedied without an act of parliament made here, to lay a penalty on all persons in the plantations, who shall there receive the coin at other values than they are directed to be current at Ijy the jtroclamation. H the proprietarv governments make Invs to give those coins a currency beyond the proclamation, I am of opinion they are guilty of a higlnnisdemeanor,and their charters, or at the least the power of making laws, may be seized into her Ma- jesty's hands by r/iio ivarranlo,U) be brought against them ; but the acts of particular ])ersons, as I take this practice complained of to be, will not prejudice the charters or corporations. (hi. l[\ 1705. Edw. Northey. VAi^hth\y.—(Jf the law of ua! ions, whir/i, nmlti/itiious as It is, may for tlv pves::tit purpoan, be aws'ufcred iimfd- tint IhlkI-' : 1. Of trrdlics with, pnu'ti's, a nil the hrritclns thu'r'if ; 2. (fthe (jftcts Ufishnjfnnn the inchjK/u/cncc (f the United Slates. (1.) 'I he ojnnion of Sir L'oline Jvnhinf, on Captain C I'lk's case. May it please your Majesty ; Upon the view that I have had of Captain Cook'a |i i-"" ' 612 OPINIONS OP EMINENT LAWYERS. y . ^.jceedings in the court of Spain, and particularly of the two oomihissions, or sentences given by the Queen regent, it is my humbb opinion that Captain Cook must prosecute the eflects of those two sentences at the Ha- vanna, and must afi'ect the ministers of justice there with a denial to execute the Queen's commissions, or else with such delays as amount to a Mat denial, before that his cause be ripe for the granting of reprisals. It is true his case is sad, and it may be as true that these sentences were given not with any intention to remedy him, but as an amusement only, and with a de- sign to put him oft". This seems to be the judgment of .Sir A\'illiaui Ciodolphiii, your Majesty's ambassa.lor up- on the i)lace, which as it is a matter of state, and an ac- count how the ministry there governs itself towards your Majesty in this juncture, I shall not presume to of- fer any thing to yoilr Majesty as to the state part of it ; but as to the matter ..I law in tliis case, I do humbly lay it as a grc)und, that reprisals will not lie, where there is neither denial of justice nor a delay of it amounting to a denial. In tliis case it cannot be said there is a denial, in re- gard tliat there is an entire satisfaction a- .-".ed in the Queen's C(munissions, with ( urumstances t. -eeming fli- vcr, all appeals l)eiiig ah.solutely forbid, and all necessa- ry power lor the due execution of ihem being • ven to (lie i)r()per ofticer; nor yet do the delays suft'ered in .Si)ain .unouut to a denial of jusiiee, for though tlu' at tendance tln're was for nine w]ioh> months, yet a judg- ment being sued lor, and at last given, that delay can- not be said to ai.ioiint to u d(Miiai ofjiistice. It IS true, and a great iiii.schief. that the parties wronged are sent to the llavannah to have reparation OK THE LAW OF NATIONS. 613 done them ; yet, I must confess, I cannot un(lerst oidy, to procinc the leparation that the Qn<(ii hath awarded. A^ to tlu^ new liipiidation, ;ip ^ f I 614 OPINIOiV.S OF E-^IINENT LAWVERS. they will say that they inust be allowed to govern them- selves according to their own law.s and forms in the manner of i)roceeilin -hw, and the trnm in proof must have been the suth for the levyin;^ ;jf which the letters of reprisals must have been granted and limit- ed ; for all reprisals nuist be limited to a certain sum. But the Queen having not condem-ied the wrong doers in the sum demanded and deposed to in the admiralty here, the law there (if 1 mistake it not) allows the de- fendant being seized and executed upcm, to bring the plaiutitf til a new li(piidation. One mischief more there is in this case , the wrong doer may prove insolvent, or be dead l)y this time, or else get out of the reach of the .justice of the Havamiah; but these are accidents fur which it c;,!i hardly be made out that the crown of Spain is accountable in case the com-ts of justice are otherwise always open ; for these casualties are such as .io fre(iuently intervene in all the Sovernme.ds in th.> world, and wliere men become in- solvent, or cannot be met with, tliero is no remedy, ti'ou-ii tiie '. )vcrnmrnt itself be never so nearly ceforo- hand with yonr Majesty, and do, hy their sccdn/o.i rmlrs, athx a new interpretation npon the treaty, in declarins-' what sliall he private, or not private, pia/.e, or not pri/r, without .'oiiunnnieatin.ir, it seems, with your Majesty' and without any pnhlieation tliat may rea(di your Maj- esty's suhjeets. ^^'*^-^'l*-^- h. .Tenkin.. nir T. (1.) 77r opinio)! or />:rfor.s Krfon and Lloyd,!! brea^.e/s o/ timti^a arc to I,,' pmiis/,,/ in h'imlnnd. Wo have ii- ohe.Henee to your Lordships' eonimands, con.sidere.1 Wn^ ,,„ur, rcfern.d to us, vi/ : whether the Kinn- of Eniihmtl. havino- made nllianco l.y trratvaiui loap-u. uitii any f.rei-,, poti-ntate, and .herein a,-r.vin- to puni.^h with e.xtreme rigor such a<. hv e,,i,,r of eorii^ missions from .Miemies to the .s.id allies, >hall takemiw against the K in-'s pr.i.v an.l treaties proclaimed, and spoil the Kino's allir.. I.r not a Icvvini: o| w:,r airiiinst the Kin.u.and pnni>l,al.|r ly .|...,th ; or what erim,. it .<, and how puni.diahle' It is our huml.l.- opinio,,, t'.at this i> not a Icvyin- war a-raiust (he Kin- no,. I.v the law of the land [.unishahle withdralh: it is a rrimc against hi.. Maje.sty's treaties of p,,,. ■, an I the strirf pro-' chuuations 1... hath 1,,.,.,, pl-a ,,1 lo ..H fo,th. to cnjoi,, thedu.'ol,,s,.r\an.roftl,..m; ,t ,~ also ,,„ ..i).,,.,. a-ainst the law of nation.s.and ly thr r,v,l l.nv ^i \^ crimen hrm majtstatu, : hut, hy the law of Knuland. we -onrriv.. i( to 1h' I.e. more than a e(.nf..lera VIII. e. ib. pun.shahle only hy ill OK THE LAW OP NATIONS. f.l7 Hue and imprisonment, .and there is an oirender in the i:ko kind now in the Marshalsea, who La(h accordingly been so punished. .Vor. 120, 1077. Tiios. Exton. Rich. Li,o\ d. (2.) 7Ii,; oju\ihn of f/r ■s<(ui€ rlrniau-^; on iJu (qmwe of acrcjjihiu- ro>nmi.^.sio)i^ fo rniinr (waimt iJu- hai is not h'vyinu' a .vr.r i-.i.'ainst (he Kinji. (namely, takir.-r a ruiniiii-ion from a fureiirn pnw.-r.to ei ui.se as a privateer against the King's ;diie«,) nor hy the law of tlie land punishable l.\ death : it is a crime against his Majesty's treaties of poaeo, and the s triel pn.elaniatioiishc has been pleased to set i) irth til cuioiii till' (bic m1 )bscr\an('e ot' tl icni ■in'e atiaiii^t the hnv <>[' nalidus, and by t IS ,'/ •i//it», i.rsir I IS also an ot- iif more than a .'nnfedenicy again.«t his .M ujestv s crown and diimished. Aor. lil. 1(177. 7y 1 ai'C(U(lii|ol\ l»een THo.«i. Exton. Hkh I,i,ovn. id 018 (MM.MONS OK EMINENT LAWYERS. (:>.) 'I he cphti'^i of ihe A and riaiitiitions. .Mv I, Olds ; 111 c^htMliciicc to u)iir I,ord,s}iij>s' commands, I liavc ]HM-ii-»'d ,111(1 (•onsidci-cd the enclosed pa])crs rel.itini; (o the petition (iC Sir WilJiain lled-cs, and am limiihlv ol' opinion, tiiat (he conliseation of his eO'eets hv the Kini,' of l*oitniial, a-i therein stated, is a manifest violation of the law of nat ion^ Her Majesiy lia \ i iiu' airtiu i v lieeii fi;raeioiis!\' pleaded to intei'po>e on the l.-dialf of the petitioner. 1 woiihl inim-. lilv propose tliis fuither method to he pursued, when for Hti 'c reasons it may hi- ihouuht (he most jiroper June tiire. l>t 'That hi'r MajesU lie pleased to refer to the court of admnali the li.piidatioii of the dama->'^ -ustained hv the petitioner aii under consideration. lid. That her Majesty slioidd he ,^Taeio^^.s|y pleased, hy her ro)al letter to the Kiuj^oiTorfu^al, peremptorily to deMuuid re.stitution of the liipiid damagt's. within a euni- peteut tiine, to he (henvn prefixed. oi\ Tint if. within (he lime I imitod, such restitution bo uut maile, lier Maje.sty l>e tlieu gniciou.sly plea.sed (,, empower the iKditioiur , s iiiado in the in^ovfiy ilieroiil', with proviso, that the petitioner be oMip^cd to j^ive ail uccoiuit of his proceedings, ])y virtue of such j)()\ver. .T. Cooke. Doctors' (Commons, Sept. 22, 1700. (1.) 7/ir opiiitdii of Ihr Att>niiii (iinl So//i/fi)r-0/-'i- iKtl, A' oil Ik 11 tiiiil litnjhioui!^ npo)i. the pitltn)n of several fiun'/ifi/ils'^ vhosi .Wiips Jttul hdca tccielary St John, we liavo, in the ali.-tnci, of S.r Nathaniel Idoyd. who i- now at Cainhridge, consi 'I'red of the several |ii'tllioiis of (k-orge Wogg, of Colelie.- ti'r, nierchant. inid oT .luiKts Alherg, of London, inendiant^ a'ld (."hinlc-; Kr.n and KmIktI A w- hnrne. merchants, of King's liViin, seltinu,- forth thai i ho Danes have tiikoa .seveml ships, houwd froni Sweden to (Jreat Britain on the petitioner's aecoimts, prav.ijg vour Majesty t.) alVord tlieni your royal piotection and conn-' teimncc in rocovoring the huiuc, hy directing your Maj- csty'H xiivoy in DeuMark to rtvlniin the nnino, or l»y as- HJsting them in ihcir rfiim ; and wr do iiir,,| hiniddv certiiy your Majesty, that tiie naid slii|.< and goods be- ing tnl :i by tiio DanoH, n.s, and insisted on to he. hiulid priz», fbo piditioneii must make their (daims and provo ♦' ■•• v,.spective titles to .i..' same in the court of adinir- ... in Denmark, in «»rdor to prevent a condemnation, and to ()l>tain a restitution thereof; and wo are inimbly ,)inion, that it will he reaj«)nable and just for vour Majesty's njinister at Copenhagen to assist the ]>etition- I: I I if t 620 OPIMONS OF EMINENT LAWVERS. ers in their just claims, and if, after their titles to the ships and -oods shall be duly proved to be bel.mging to your Majesty's subjects, and nut to be lawful pri/ry, and justice shall be denied them in the courts of admiralty and the courts of appeal there, if any such be, your Maj- esty may then dem;iiid satisfaction for your saiil subjects from tlie crown of Denmark ; and if justice be not then done th.Mu, tiu' petitioners may projx'rly a,,ply to your Majesty for letters of manpie and reprisal, to be granted them against the subjects of Denmark, it being made api)ear to your Majesty tluit your subjects have l)een de- nied ju^^tice in Denmark. ^'''P' "•• -^'^'- EUW. NoUTilEV. liOIi. Kav.mo.nd. (5.) 2he report of seven t' 'irillans on the -mzure of British vessel'^, hy the ASjumiar,/.; in the ]\\H Indks. Sir; Having perns d Mr. l^dhin's letter liom Bermudu, January 9, 170:3-' ui'h the allidavits of Sanmel Sbir- lock and Sanmel Smith, as also of Fn,..us Jones and J-'lni W iliiam.s, we humbly nre of nni„ion, tliat in case •the Lords Commi.Msioners for Iradeand plantations think those infoiuiation> to be true, that tbei, the ,,„lv and projx^r way for relief will be, i.pon a n p,v~ent.ttion of this matter to the mini.stor for Spain residing her.', and likewi..*e by Jier Majesty's minister at the com t of Mad- rid, to demand reparation ami redress of those pnicticcs complained of, which ,-eeui wvy prejudicial to. and de- btructive of, tbe liad.- of her Majesty's subjects in th(..^o parts; and (hat herein no time should he lr,st : which we nevciiheh'ss submit to iheir Lonl.-hips' judgment. C. Hedoks, W \Vt)oii. Natii. Li.ovn Him Hemhman Xli;.\.iSEWTo.N Doctorjj' Commons. March, 4, I7Uo-4 'W OF THE LVW OF NAnONS. 621 (6.) llvi A(h'f)c(ite-Qmeral, Doctor Slmjisonh opinion, on the prnji^ct of a liaily of commorre ir/t'i /'ni-s^-ia. Sir : In obtHlienco to the commiuids of ihe Lords Commis- sioners ol" Trade ;uid Plantations, .s:bouid be thought necessarv to cnlei' into aii\ coinnierci.ai one with I'ru.ssia, the |)lan of that treat\- seems to bo as little iirejudicial to us a.- an\ extant ; but 1 tiiiuk il (Ic.-irable that some .aller.itinn- >liould lie inaiie, and p,!! ticidarly uitb respect to cmil labaiid and the passport, U8 to which the convention wiib ihainiark, in 111'.) I, seem- to be a better plan Tbe contraband spcci- 622 OPINIONS OP EMIXKVT LAWYERS. fied i)i that convoiitioii ovtonils not only to naval stores, in e>.[)iess torm<. Init to all instrnnicnts of war, either li.v sea or land; and more strictness is there required Avith i-ospect to the oaths of the masters and owners of the ship and ear-o. Avith the nature of it, and destina-. fioii of the vnvaLTe, as well as in regard to the ohtaining of tlu^ passport, and the lorm tiiercof. I do not rerolU'cl an instance in the late war of a Swedish shij) Iicin-i- taken, furnished with a passport n-rreeahle to tlH> licr.ty of h'.ti I, hut most of those which Were taken were, upon in(piii-\ , found to carry contra- band, or conceal enemy's property, thoui^di they hail jiasses on hoard Iiiipoitinu- the coutrai-\ , and I am per- suaded tint null ^- '^nniesiicii provisj >n Ii(> made as is in that con\eniid uhal s[)ocie.s of provisions shotiM he de( nied contra- hand. U can h(! of no service to ns to exteml lo ticatN- the King of I'ru.-^sia's liberty of navigaiiMU aiitl couunerceto all the sea.s over the uorM. ;ind paiticulaiU to those of Asia and Africa; but possihiy the i\lii- of I'lus-ia has a vie^v of njaking some settlement, or establishing an In- dia company, for he would not, I conceive, under tlio loth arti(de of (he project, be enabled to trade to our OF THK LAW Ol' NATIONS. 62i settlements, or traffic otli erwise tlirii has boon tlicrc practised bj hiin ; and it it (!l).-Ci that tl !oiit;li by the 5tli articlp of the treaty, in IGG], the confederates are not to furnish any aid or supjdy to tlie enemies of the other, yet, by the Dth article of the ])r<)ject, the con- tracting parties are to stipidate not to succor (he ene- mies Ol" <}ie other by sea only, and if any of our allies whom we are cn,i:ii,s:cd to supply with (jur natural sea force, should be at wai- witli hiuK tlie compjvin-- with that objection n.ay perhap- l)e deemed a contravention of this treaty. The 1 Itii and I3th articles of the project oui^ht to be altered, for though they be sinnlnr to th(> J2th and 1 fth articles of the treaty in iCill, yd that part of tlieni re- lating to the punishment therein stipulated to be inllict- ed on transgressors ought not to stand; as, I conceive, his Majesty cannot, liy any trcat_\- make his suljjects b- able to other ]iunishments tlian wliat the laws of this ivingdom do, and that is costs and (l.inngvs lor (he of- fence, to jje recovered in the adiuirally coiul. With these observations, I have taken the libertv to send their Lordships a cojiy of the iiistiuetious which were given to privateer^ in I7n-i (hawn pursuant to the treaty with SwihU-u in Kxi 1. and the couver.tion with Denmark in IGOl ; to wi:ich is annoifd tlie foiui'^ of tlic oaths and passports, as they may probabiv lie useful 111 the con«ideration of the project ibr the ir.-it\- pro- posed. En. Sl.^u■.SG^. Doctors' Commons, .Imu' I 1 ITo'l. (7.) 7/ie A and navigation, and no AvaAs contrary to the maritime law, the princii)al view, pur- pose, ami intention of that law ixMiig to encouiav tliein, or either of them, in Amer- ica; and that if any ships shall be found trading contra- ry to tlie said treaty, upcni due ])roof the said ships shall be confiscated ; luit iu case the subjects of either kiii"- shall be lbrce(M»y stress of weather, enemies, or other necessity, into the ])orts of the other, in America, thcv sliall be treau'd with humanity and kindness, and may provide themselves with victuals and other things nec- essary ft)r tlieir sustenance and reparation of theii ships, at reasonalile rates, provided tluy do not break bulk, nor carry any godds out of tlu ir ships, e\-jx)sing thei.i tosale, nor receive ;iiiy luerchaudize on l)uard, under penalty of confiscation of slii[) and goods;" notwithstandinp: which treaty, we are -iveu to understand that an illei,al trade has been carried on betweeu our plantations and the French settlements in America, on pretence that there is no law in force agaiu>l such trade. It is therefore our will and [)leasare, tliat you signify to our subjects under your government, the pur^wrt and intent of the abovesaid two articles, and that you take i)articular care that the same be puiu'tually o))servcd and put in cxecn- ti(m, and that no illegal trade be carried on l)etween our subjects in our said under your govi'rnment. and tiie French .settlements in America, bv anv ol' oin* sbii)s of war attendiiiir , or by any other Britisli ships; as like- wise that none of the French subjects l.«? allowed to trade from their said settlements to OF TITE LAW OF NATIOXS. 627 We Imve also considered the annexed extract ot'tlie ;"ith and Gth articles of the said treaty of peace and nedtral- ity, referred to hy the said instructions, und conce ive that it was the intent of tho.^e articles to ^iy,. power to the King of Great Britain, and the Most Christian Kinir, reciprocally to seize md confiscate the ships and cni-.i^oes ould belonginjr to the suhjects of each otli carry on a trade contrary to tl er, wluch ai ■ticl. seqnently, that ships helon and, coii- ging tu the subjects of Kr with th the British phintations in hivach of tl nice. eir ladings, that shall he found trad nig 111 ;iu\- () f lose arti be liable t cle Mill obe seized and coiideiiined I some of liis Mi}j- esty's courts within such plantation I'or tiiat Ciiii-c : and that, on the other hand, ships and their cargoes helor.g- ing to British subjects, who shall be found Iradin-- in any of the French plantations in breach of tl le sai( tides, will, in like mannc r, be sultject to seizure and c fiscation, within such French i)lan(;itioii ; hut ar- on- hend, that it was not th(> intent that either of tl we ap[)re- tr''nty lo provide le contra ting power- slionld ■ei/e a ml ii'ir own subject-:. 1 or confiscate the ships or g( ds of tl oontravoning the said articles ; and ifHich intention liad appeared, Ave are huiul.ly of opinion , hat it could not liave had its cllect with re-peet to lii-^ Maj.jstv's sub- jects, unless the sai.i articles had been eoiitii iiied, either by the act of Parliament of (ireat Ibilain, or by acts of assembly within the respecti'-e plaiit:itions. As to riie above mentioned instiuetion, there appears to us notiiing illegal in the teriiK of it ; but considering the distin.-tion arising upon the s,ii,| two articles of the' tieaty, wlii(di we have alieady stated, we submit it to your L'jrdships' consideration, whether il mav not lie expressed more explicitly an Jli/rrdij, on f'lc ■sain': svljxi. To the Ili-ht JI(,ii. tl)c Lords Cumniissionors for Trade and Phnitations. Ma\- it please yoiu Lonl.ships ; In pursui.nee ofvour Lorusbip.s" desire, signified tons by Mr. PownalK in his letter of the 3Uth day of March last, inclosing a copv of uu instruction given to the gov- ernors of his Majesty's eolonie.s and plantations in An;?r- iea, relative to the -nh and Cith articles of the treaty of peace ai;ii anr Gir}j, on the same suhj ct. 'I'o ih.. Kivlit Hon. till Loi(lsrouiini.ssionersforTradt> and I'lanlalions. May itplea.se _\our Lordships ; In oli.'dicnrc (o y,,ni- I,nnM,i|,s' eontniands, sigaiii,.,! to us ly M,-. i>uwn;dl s Irtirr of tii.'^Sili of .Ianua|■v ^ast . i lit ! iiia I i ng that .\oiir L,,i-,M,ips had under yoir con- Bideration some papers ri.lutn c to a ucgociatiL i with the OK THE LAW OF NATIONS. 629 court of France, respecting the freedom of navisiuneis o|' trade and i)lantati()ns, I have taken into coiisideratiou the question with which I am honor- ed, whether thi' treaty of lOSC), cmmonly (>alle(l the treaty of neutrality, is a subsistin-,' treaty .' i have con- sidered Hie saiiH' with great attention, and it does not appear to me that t\u reaty of KiSG is not a sub.-isting treaiy, but that it nri;/ li, tn.si.st,,! ,ii>,ii to be so, upon the -iniind of implication of words, and the e(|iiituble in- ter[)retaiioii of the subseiinent treaties which have been i'nrmally renewed, by the treaties of Aix la Chajielle. ■ iini tbr la,~t definitive treaiy of W'lsaiUes ; and as tlie treaty of ICSil i< siipporteil by the general nature of sueli eoM\enlions, and by acts of aekiiowh-dgment of the conlraetiiig partii's in tlie intrrnie(bate jieriods, and n^ 1 * I i 630 OPIXIONS OK EMINENT LAWYERS. •i M, farther, that the treaty of IGSG luiving not been special- ly abrogated, ^vhat is not abrogated may be understood to subsist, 1 observe, thnt the treaty of 1G8G is a subsisting trea- ty, not otlierwise than it can be maintained upon some one or other of the.se reasons, because, on the other hand, It appears that none of the subsequent treaties have noDiiiially revived it. These are the general outlines of the prohahle argu- ments lor the validity of the treaty in question, and tho objection against it, all which I shall submit in the fid- Je.st maimer I am able, for their Lordships' consideration • because tho admitting that the state of commerce witli France, in Auierica, remains unsettled by the last gen- eral tixMty, leads, as 1 humbly a].prehcnd, to largo con, )\ sfricfh/ .^peakin^, the law of ua- tio»., by particular stipulation.s, are to be argued 'upon the looting of all obligations which arise from contract oxpre..sed or tacit, whrther qua^iur contractu, or neccs- .vudy .u.pl„.d by gviirral uonls of comprehension; and the pnnriphvsnrthe ^\^\\ Viss, drnhlo,alio»ibu., which IS the law adinittPd by ail nations '.n Kurope, by most in the,r,lom..slic,and by all lu national q.iotion.s, must be allowed to arbitral., iu .hviding (he vali.litv and exist- once of a publi,. t,v;,ty, by (h.. same rules and rea.son- ings as wlien Miiplicd i,, ,u,v other contract of private lit'"- I imagin.., th..,(.f,„v, that tlie ••ivilians of France will admit til.. rull.,wing prin.iph.s to be just : " that tho groun.l on ubl.h tb,. In,-.... of ..very .•ontmct relies, i.s a mutual, appaivnt coi.M.nt. un.l an ...piitable ..bjoct incoii- OP THE LAW OP \.\TIO\S. G31 tracting." Words or characters are merely used to cou^ vey, by marks or sounds, the ideas of consent, an.i to preserve the memory of compacts; now the end thu« be^ ing pnncipally to be considered, and the means bein- regarded only ar- declarative of the end, if by anv other means than by strict wonls a contract is implied it is undoubteuly valid whenever there appears, from anv acts or reasonable interpretation of .i.irns, an acknowk-d.^ed consent and ecpdtable foun.lation of contracting, these circumstances making the very substance of a contract ■ the instances in the Roman law are many and obvious' that obligations may be entered int., bv implication' the consequence I mean to draw .s. that if obli.^ations can be entered into by implication, and so con)menced they maybe revived by implication, whi, h is a stron^^er case: they maybe reviv.V p_, i,Hi,ii,,,tion, a fhrt^.ri, with more facility than mey can be commenced • be- cause, in the case of hr.t contracting, the contract is ^tncfijari% and re, integm ; but in the caso of a revival there IS a basis and better ground of implicati.m • for the general sense of (he c.,ntra<-t o„ce bcinir declai-d by (acts correspomling to it, is perfccliv nn.l.rst.uul, so that It want.s fewer words to revive a cnvenlion, than first to contract it. A contract, also, revives fron> the very nature of the cau.se ceasing to ..perato whin,l rrfnf. said the great Roman lauycrs, a>, mU. juyudns fohnUatrm -suam i V ^ H II r I 032 OPINIONS OK EMINENT LAWYER.'. they strongly laid doAvn the doctrine of obligatory im- plications. Xeipie ■Kiijjtiira omriimodo ojtxs cs*. ul ,si'/>- staittiiim capiat ohiu/a.io, scono et ctjuo pra-stare opx)rtei. Thi.s rca.soiiing, applied to the validity of the rreaty of 1G8G, acquires fresh force, by considc)-- ing the nature of a var under the circumstances of the several powers of Europe, and the comprehensive stipu- lati( ns of the definitive treaties ^ubsequent to it. and bearing relation to those circumstances. A stress is laid \\\m\ this point; for in debating any question upc n treaties arising between nation and na- tion in the age we live in, it is necessary to keep in view tlie general state and condition of tlie contracting pow- ers, fro-.n when-e the arguments of public law can only be drawn Avith any just decision. AMthout or.r revolving, theref!)re, for cxani[)les, the ancient history of nations in a less civilized state of mankind, we may d.'termine upon points of pul)lic law in a dilfereut Avay than tiiat in whi.'li (u-otiiis Pullen- dorf, anil other elal)orate writers of liolland and (ler- many have doiu- it, amassing their prools from tiie Greek and Uoinan historians, orators, and po -ts, from tragedians, comic authors, and fathers ol' (he church, a.s eciual authorities; bnt the decisi s of pulilic law are, and nmst be different, in diflerent ages i^'i mankind. The systtMU ol' nations concerning their reci]irocal ritrhts ■whether ly usage or treaty, dejiends upon llieii- man- ner.-'. A\'!icn I s])eak of the ])rpsent age, I mean \\\\ in- terval of time from the treaty <)f Westphal'a down to the last defniitive treaty of Versailles, which mav be called truly th(> age of negociation, of which kind of in- tercourse and connections the Greeks and Komans, con- OF THE LAW OK NATIONS. 633 tending rilways with barbarous nations, had vorv i ritial Mictions ; ('rawn liowoveiv from, and ada])ted to. "the con- litiou of (lieir rivals, and the rest ol mankind, in tlio.^e ages. Jn the present age, as war is commenced on dif- ferent principles fro.o Ihe wars of anti.rnity, so it ends with different principles; in l^otli, more' to "the honor of humanity. The public law of Europe aldiors the sanguinary oh- jectof ancient wars, universal slavery or extirpation.— Every war, in those time«. is cnn/!>pfi)^,' of the other rights, not in con- (est, which existed between the belligerent powers reci- procally before fhe war: when we renso,,. therefore, that a wnr being ended, the public reciprocal rights ami ol,li. gations,not specially abrogated, but suspended, emerge, and acrpiire their former vigor and activity, the reas-m- • ng ){ '•( is just; is so, because it is .•..n,>istent witli tlie relations, a.id arises out of the natui-" (4' filings. Wo Jit'ed not urge the necessity of jnrti.'ular stipulations to revive .su.di obligations: it is the very e-enn- and M(>cessary idea of recoiiciliatKm, iniplicd of course, if not declared, in every definitive treaty of paciilci.tion, that the commercial and friendly iutercour.se of the • •ontractingi)()wers is replaced in its former state, but it is usual in all delinitive treaties, thitt all fhe n<'(s of hostility which have been comtnitted oi: ,.ither si,i,. )„ suspend tlie intercourse «>f thecoiitra.^tinir pnrf ies. sh.mld be .ledared to be forgot, and to be couM.Jered roninw HO), arr,,,,^, which, when expressed in tcnns. ,-an inean nothing, or it nuist mean this, that no conseipi-nce shall hi . IM il i' 634 OPINIONS OP EMINENT LAWYERS. be drawn hereafter from the past contest to the prejudice of any reciprocal rights existing, before iwfc expressedly deviated from by some new stipulation. On this general ground it is, I mean a restitation of reciprocal rights in integnirn aftA- a war, implied as well as expressed, that the jus postliMinii, which never has been called in question in any period, reverts to creditors relative to the debts due to them from tlie subjects of the belligerent state, contracted before the war, during which, although the right of the creditor to recover the same is suspended, yet it is not annihilated by any con- fiscation, but he may pursue and obtain his demand after the war. New the same restitution in integrum of na- tional rights and obligations is as reasonable and just between the respective governments, as it is universally allowed to exist between their subjects, one with anoth- er; for the revival of all obhgations, public as well as private, stands undoubtedly upon the same analogy of justice. But there is still a more striking instance of all obli- gations not entirely smking in a wnr. when the creditors of one belligerent party are the subjects of the other hostile government, and yet preserve llu> right to their property, by the law of nations, flagrante l>elh, witliout danger of confiscation. Such is the force of those ex- alted principles of public law, which, in these hnppier ages of human society, restore their proper empire over the minds of men to good sense and good faith, with a force superior to 'he passions or prejudices of naticms long accustomed to be rivals ; and such I conceive to be the law of Europe in its present state, which, whenever these doctrines, founded in reason and humanity, shall cease to prevail, will fall back into all the gloom of a barbarous condition of ignorance and despotism. OP THE LAW 07 NATIONS, 635 The war becween England and France which follow- ed th3 i-evolution, suspended Oie commercial treaty of iG8(5, called the treaty of neutrality. The treat}^ of peace concluded at Ryswic,1697,takes no notice of it nom- inally, bul revives it, not only by the general quality of a treaty, putting a:, end to the war, but by the strongest term, of a general fomprehonsion, restoring the com- merce ot the two nations, reciprocally-, to the state in which it existed before the war. The o- ch article ii, lU)e,' sit usus navigationis et com- mcrcii inter subdif^KUtriusquc dominationis, rrgumprout jam olim eraf tempore joacis a ante nuperrimi belli denun-. ciafionem. The comuierce of the two nations was declared free, just in the same degree as it was free before the war, and of course prohibited in the same de/'ree ; so Ions as. in our reason! 11 L', iMtry affrmation carries with it the necessary negati'n of us opposite. Thus was the treaty of 1G8G revived, by implication, in the terms of the treaty of Ilyswic ; but it was as strongly revived by reciprocal acts of acknowledgment ; and both nations adhered to the treaty of 1G8G till the war of Queen Anne. By th war the vigor of the treaty of 1G8G was again suspended till the general peace of Utrecht, and revived again in the same manner as before. The 7th article is, la uav'Kjation et le commerce seront Uhres, (Hire le-: svjvt-i de leiirs inajestea, de ineme qiCils Vont toujour s etc en terns de paix, ct avant la declaration dc In ,l.evaiKi.ty of the treatv in, uestion appears 1'''""'. •"•-unvledged, u, fact, by no step bein./tai.en - c.n.travenf.u to it by France and England ^^Z long a period as from 1713 to 17-V If ». ■ 1..0 lu.uv .,rifi«,i ,,,„„.„,, „,^,^ ,„„ij^,.„| '■Itl.-varcnr.4. Tl„. .n-.Uv „r Ai. U ;:|,.,„ ; ok,K,„„t,eo„r,l,i.. ,,.„.,,,,,,,,,,,,,,,, ,,,,,,,,,,, 1 »u ..,.|,Matro.UH.s. TiK. ,„,,.,• or 1«»0 «., ..ck 4- — i— H— OP THE LAW OF NATIONS. 637 The last definitive treaty of peace, like that of Aix la Chapelle, does not nominally revive the particular noaty ol 1G80 ; but having first^ nominally, revived the great general treaties, in whieli the interests of the other powers of Europe have been settled at different penods It goes on to renew all other treaties whieh ^ubs,.stea between the contracting parties before the war : thus a distinction clearly appears, that some treaty .s understood to subsist, which is not named, and which hat he treaty understood is relative only to the in- erests ot the two contracting parties, separate from the est ot then- alhes and confederates, who were parties the treat.es which were revived by name; ,so that • here .s a very reasonable ground of implication, from the erms ot the reviving stipulations, that the treaty ot 1680 was meant to be revived as a subsisting treaty n- the last deiini .ive treaty. But upon the general ana- logy It ,s a nuich stronger case that a conunercial treaty should sui,s,st by implication, than tliat a subsidiary trcaty of alliance, which I take to be out of doubt, shoui;^ ^nbsi,.t by implication, though made Ibr a limited time - completely as by signing, sealing, and tbrmal ratifica^ t.on, provided the parties do any act declarative of their consent to the renewal, which as I observed before is tin. groun.lon which all contracts are supported. If one I- V ua.,,,,,, the subsidy tbr another year or mo" aixl .b. o her accepts it, it is, undoubtedh- .r .nbsistin.: ^■eaty, no withstanding that the term limited is expired" ^ow, ,n the case of the validity of a general treaty of ;;"-'■"';-;^ tl.e .mplicatioa of validity i< stronger, becm.se 'e,v being no limitation of time, nothing el-pires; but here ,s only a suspense of the obligation, during the in- t>.rval ol a war. *♦ 1 11 f 4 . 638 nlMMONS (11- ICMINKNT r.AW^KP.g. II I The general stipuliitions^ ol" revival in the deHnitivc treaties deserve particular attention, bccanse under the terms, ■• I'enewin-; all subsisting treaties." it is plain, that they do not subsist, because they are renewed ; but they are renewed in words, but snbsi.st beeraise the war is at an end. This usual stipulation would be nugatory, if it revived nothing by implic.ition of this expression ; and it would be redundant, if it did not attempt to show that it did not mean to abrogate specially, or by any impli- cation, but on the contrary to give the utmost force to that which was already nnderstoood to subsist gener- ally. Upon the whole matter, for some one or all of these reasons, or for better, which may occur to the contem- plation of their Lordships, and the wisdom of his Majes- ty's administration, under the present circumstances cf the British and French colonies in America, I have the honor to submit that tiie treaty of 1686 maybe insisted upon, as a subsisting treaty, not only because it is re- vived by a strong implication of words and facts, but for that it may be understood to subsist because it never was abrogati>d. Ja.mes M.vrriott, Advocate-General. FJ'. 15, 176-'). If the King's advocate's last report on the treaty of 1686 is not circulated, he begs the favor of Mr. Pownall to niter tlie passage, page 8, beginning at the words, " But there is stilt a more striking instance," &c. &c. Instead of it, read as follows, "But there is still a more striking instance of all obligations not entirely sinking in a w>,i-, when the subjects of one government are the pul)lic creditors of the other, and yet these alien enemies preserve the right to their proiierty in the pub- OK TIIF. I,AW nv NATIONS. 639 lie funds of the hostile government, by the law of na- tions, in the midst of the war, without confiscation." Doctors' Commons. Feb 21, 17G5. (13.) 'Jhe opinion of the Att')rtiey-Gcnrr(il,Pmlt on ike question wUcthcr Gnadaioupe became, in 1759, a hritieU is'land. By the book of rates, annexed to the act of tonnage and poundage, 12 Car. 2, C. 4, and several subsequent acts of parliament, the duties payable in Great Britain by British subjects upon the importation of goods, b.^Ing the produce of the French plantations, are considerablv higher than for the like goods if produced in the British plantations. CW.--The articles of capitulation entered into on be- -lalf of his Majesty with the inhabitants of Guadaloupe are inclosed : the seventh article, by the tenor of it seems intended only to operate upon such duties as are payable upon the island, besides which the sixteenth and twenty-first seem to be t).. only articles relative to trade. AT 2?._ii^ ti,,, ^.^^^, ^^20, the French and En-lish by consent, took a joint posse.ssi.m of the i.sland of St' Christopher's in America • about the time of the revolu- tion the French drove out the English. In the year 1690, or thereabouts, the English recovered the island and had entire possession, which thev continued until It was ceded to them by the peace of Utrechi in 1712 It appears by the book of rates at the custom-hou.se^ that sugar imported into Great Britain from St. Christo- pher's, after the year 1090, and before the year 1712 paid the same duty as sugar imported from the British plantations. it '• 11 *;' I 640 OPINIONS OF EMINENT L.UWEKS. Qume—ls the islund of Gi'adrl,)ui)o to ho considered as a pLintation or territory, to his Majesty heh)n,lrin^r, ^r in his possession, within the nieanin.ir of the act of nav- igation, and the other hiws before recited; and is, or is not, the produce thereof, when imported from thence in^ to Great Britain, to be charged with tlic same duiv as li it was imported from his Majesty^s IJritisi, phmta- tions ] r am of opinio,,, f,.,,,,, the best consideration I can give this case, that (;uadah)npe must be considered as one of the Bi-itish phuitations; for notwithstan.;;,,- th<> advantageous ter.ns that aregrante.l t.. the inhabit'ilnfs the i.ian.l is clearly in his Majesty", possession. ThJ inhal)itants are di.sarme.l and in a state of subjection to his Majesty and his tr..ops; all new commissions are to be taken nnder his Majesty, and all acts of justice ar. to rnn in his name; he is i„ actnal possession of all the public revenues, and all tb- ti-ade of the islan.l hns changed its course, pa.ssino- n„w in English bottoms only to (neat l{,-it,.in; all which pr.rticulars being consi.lered I must con.h.de that this island is now a plantation be- longing in his Majesty, and in his possession. i„ ,-1.1,1 ,.f the Crown oCFnoland; thnt it is an Knjrlisj, a,..' a^Hrit- ish plantation, within the mrani,,./ an.l intent of the act as refenv.l to : the f,Mvat objection to this opi„ion aiis^s from the condition of tin- present irdiabitanK, who rojoy priviU-rs. under the artidrs, hardly ...upat il,)- with the statP of snbjeets; but that has no ^nvat weigbt, if it be con.«ideiv.l that tln-se aie pei-.sonal privileges conlin.'d only to the pres.Mit iidiabitants, who are nvstrained from alienating to any but th,- Kin^'.s subjcef-, and the Kin-'s death, tliey would h." anil ty of high treason, and to'mustvate iliis I'urther. if tlu; inhabitants should nirree to sell all their posse.-^sions to Kn<-lisl diately. without aiiv further treat nnen, the island would unnie- come w y or eaiiitidation. be- stood them holly Kuolish. The inhabitants plainly un.l or- ^elves transferred to his M nd therefore ha\e stipulated for tl i.jesty's doiui rivil nions. u' like 1) trade a s a; allowed to the r.'st of his ;\[ i> is irranteil, with a itroviso that tl eires m .i''els; anil th ly with the acts of trad. f i|esi\s sul)i 11 ii word. th( -'|l>|ccts iii;iv be itrtter H'V eom- P'lition of luMi' th' "'.' worse ill dill erciil "piestiou is .iliiiiit pai1> lUt o with th 'oxorei-nty. .'ind has nothini • ' iinviicL'c; hi- M b>v;rant the uativrs. I ha\chad \]osiy hiiK l„.,.n plcjised no Icr with Ml op|ini-tuiiit\- to eon- t hi'l'di/iT, ii' ii;'itoi--(lriit'r;il upun tl wo dilfor, I should wish ( 'Vith him I, lis point ; and ' ii:i\t' a nieetiiiir 'eniise tois is a (in piesi ion oi iir(\'it •■'•nrenis a innHilus of ihr .!.•( ,.f u iviualion, ami ll I^MVS rr|,||i\-,. I,, ll W ilM. Ill hiti le .same suhjeot matter ai I' I 'l'Olllll'(» (1 les as if impoilcd tium i 82" n;sht to he eliarK |iin\i,|rd the ipient plied le suh.-i (■ et.iii eU Willi till. aiiu! ''■""■" Kiii-^ 'iri-iiialU Ihiiish. 042 OPINIONS OF EMTXEXT LAWVERS. The act Of navigation U'fers not only to the plantations and tei-ntones l.elonging to, or in the possession of, the crown at that time, but to future acquisitions; and the later acts, which relax or vary in some respects the pro- Visions of it, are equally extensive. The instance of the rule observed at the custom-house as to sugars imported trom St. Christopher's I.etween 1090 and 1712 (withou. distinguishing ])etween the ancient French and En-lish divisions of the island) is in point. As to the art'icles of capitulation with the inhabitants, 1 think that ques- tion is ur.t aifecte.l by them: the King has a right by eoncpicst, (hough it is accompanied with terms. The seventh arti.de plainly respects .hitics pavable in Gua- daloupe its(df either as a beneficial rovenue to be trans- mitted to Ivu-ope on the King's account, or to be ein- ph.yed in e.inyiug on the expenses of govenmuMit in the pla.'e. .Vn.l the sixteenth and twenty-lirst articles (as allowed by (."enerMl n;nrin;:ton cud Commodore M(.ore) only slioulal.- li.r tl,e i.d> d.ifiMts those privile- ges in trade, aerording to the law. of Kn-^land, in udiich his .Majesty, without anv su.d. parti.'ular .vtipulatiou might lawtulK indulge them iV..m ti.e moMM-nt that they owed ail allegiance as his subjects, roidents in a plan- iiitioii Iielonging (o his crown. II' .here are any olyvti.,ns agains, putting this con- quest on the same foot, as to the duties ;„ ,,uestion, with "tlier plantati,.ns belouoing (o the Kin-, or in bis .Mai- e.sty'8 po.s.sessiou, they umst ^nsv IVom m„. ther arti- cles and ••vpressi,,,,, j„ ,| „,,i,„i,,tinu. |..nding to qual- ity and render incomplete the right or<'onques|. Un{, lirst, it sei'ius t(. me imiit.il. rial, that no actual oath of fealty or alhgiane.' t.. the Km- i^ stij,„lated, bo- causo the conquest binds the inhabitant, to s„eh nlle- OP THE LAW OF NATIONS. 643 giance bv the law of nations. Second, Where the in- habitants stipulate a neutrality, in the fourth artic!<_', it IS merely for the single purpose of not being coii.pelled to bear arms. Third, Expressions in the lifth, se—nilh, and eleventh articles, Avhere both the English officers' and French inhabitants, seem to refer to some act of cc^-sion {hy way of perfecting the King's right) which may possibly be made by France to his Majesty at a fu- ture treaty .il' peaco, are mere inaccuracies, and import no more in the vieu- of the paities th.tn saying, in ease the island shall Ijc retained by his Britannic Majesty, and not restored to the French King, then. Sec. &c. What puts this matter out of all doubt, is, that article twelve, as periled by the inhal)itaiits themselvc-, supposed thr.t Guadaloui)e mny be the object of a-i exchange between (ireat Britain an by (imit Britain to F' r.m e ; Asiiicli. in the \fr_\ teruis. supposes an absolute coiupu-st. I poll the wl.ole, 1 am of opiuidn that the island of Ciia- dalotipe is to 1h> ronHdcred as a plantation belonging to the KiiiL', aiwl in his possession, within the ineaiiing of the lawssialt'd; and that the (hities ought to be pai — eni.a.i„nsof K, ..„. i. p.-o- t-tanls h,„v tho .-eign of l„s p,,..,„, Mai,..f^,!,v oi rounci; 1 ni order '"; ^^■••^"•'•"'•opini,,,: (hataS.a.t.hn.ani.toho accounted as an KnglMunan u nhnuhe aot,everv Seotch- Jttnr 1. 1701. ■ r,, •lo n .1 1\ 1 1 .. OF Tf|E LAW OF NATIONS. 64.' flu (in.; 2he opinion of the Att 01 •nrij-General, NorfJu-y, on ipte^tioii of alienafjc, ami tra'/in,/ with her Mcin; T ln'iuas, undvr the Kiu"- of K hO( ■n commanded to return int< le owes to her Majesty ; howev- ^ettled inliabitant in the island of St. sunaik, and not liaviu"- <> lier Majestx s dominion- as he miyiit have been, thouo-h naturalized tlxM-e, 1 tradinj,r with tli.' Spaniards from that i.shmd •ith the Danes, will ii,,t } in amity aud tlu'H'I'oro I cainiot advi.xi- tl 'L> a capital, if anv oHence at iiiu criuiinally for sucli tr i;ippfiis from such tradiu"- uMiu le [jroccrdlng against ll any inconvenience crnor of I{;;rba(h.cs' Ktlci-, thf (,)u return to her Majr>t\ s d as is Slliiiri strd b\ tlu" iTOV- I'uccii s sub|fcts ma\- 1 )e iTcal ('(t rcf !-e, and after trade ai(h h M may be |>iiiini.iiis. and if thev they iK'.-t \ s enem] l'i'"'ei'iicd a;L;uin.sl crimiiiali\ I or as nn\ of lid .M -uch li-adii IL'. tions limy Majesty's enemies, that not take simple tiad i.jesty's subjeets resid ii'.ii in her ;)lanta- i"<'ceed..d auaiust foi- tradiui; with 1 ler tor a lui-deni eai: for I (h pf'U, nnlt'ss ii N^ ith stores of w.ir ill- witii an cm my to be iii.r], t in such trade as furni-lics il IC CMC rea- niy Manh -i-i, I7i(/,ian/.s' w/i 'rncij;GmcraJ, Norton, h> roH'ttned ill tlv '•>, ■u'ere aliens ot onoral)Ie the Lords (J Trade aiu". Plantations. May it pkaso yonr Lordships Dniniissioners for Li oliedicMK'i t 11 le hv Mr. P o your Lordships' comma 11(1 ■() the first of March hist, stat wualls h'tter.s of the 2 1st of I) signified to ocember.and ft ing that great difllculties had •efiuently occurred irom the question whether tl jects of tlie crowns c)f F le sub- th;) ceded couiitr ranee and Spain, who remai les in America, are to be considered n m Ulcus ; and •iitimating more particularly, that a varict, as of doubts and dilliculties had ofal occurred as to the ability icns to acipiire ])ropcrfy in America, eitl n-aiit ler by piu-- '»• ie^iM. from the crown; ami also as to the .situation iu respect (o the laws of this kinirdom, of aioh Mibj,.cts of the crou-ns (,f France and Spain, as being in- habitants o|- ('iiiiiid.i, Florida, and tl the AVest liid the la^t d le ceded island s in le c I n 1 1 1 i \ < '■*''"i;iiii there under the stipulations of trcal\ and tl union, ulictli itauts of ( lerelore desirinir m CI" -IK ly :lUil(l;l. 1) oiiunu a. S(, \ ii iccut ic alk'Liiaiic .ft! said couiitrie Ii <'i' the French or Spanish inhab- \.\\v islands oj' (Jrenada, V'JKigo, iis Itcinu' born out 'lorid I, imkI aii{ :l|es|\ , ;ll d also remain ii; tlu iiiiilcr 'i|"il;iiions dl' tb,. (IctinJ! Ireat^ , disabiliti \c are iii).s, udictber as it is a nntterof the highest importance t!iat those .-ountrie.'j ^hnuh] be sefle.l, and perhaps not less s.. that such set- i I ■ ■ . mz H iB!.£it ^m n H H^K— -c- ^ IP G48 oiTNfONs or eminent lawvers. tlements should he made without draininr? this country of Its inhabitants; whether it would not be proper to apply to parliament for a naturalization ))ill for those . places, undor proper regulations, as well to eneouracre foreigners to go tiiither, as to quiet such aliens as mry have already settled there under the common received opinion that they were capable of hohling land., there for their own benefit, and disposing of them in anv man- ner they might think proper, in common with tL rest of his Majesty's liege subjects. -. . Fletch. Norton. Lmcoln's Inn, July 27, 1704. H.-nf the legal effects, resulting from the acknowl- edged independence of the United States. ^1 re-^fatnnoa of J/r. Chnhner^, njnnh,i on that hn- jyorfant sxhjcrt. The .p.estion is, whether the inhabitants of the United Ntates, who had been born within the King's alle-iame and remained within the United States aft-M- the^- were' aekuowle,lg,.d by the King to be independent and sov- ereign, continued subjects, having th. rights of sul^ject.- -■ '-an.e aHcis, having the rights of aiiens, iVoin thai acknowledgment. Hnnng the year 1783, which forms the epoch of that -out, took the liberty of publishing ...v opn.iou of tl.o1-"'"'. And as abler nu.. than I preteud to be have avowed and publishcl very different sentiments from mine, it may, perhaps, be in.n.-.itte.l n.e to restate and '•euuon.e my original ..pinion, which lirst broke th • ice h.l t; il OK THE LAW OK NATIONS. 649 that had been collecting and consolidathig for so many years. The act* which enabled hi3 Majesty to conclude a peace or truce with certain colonies in North America, declared it "to be essential to the interests and the wel- fare and prosperity of Great Britain and the thirteen specified colonies, that peace, intercourse, and commerce, should be restored between them. The treaty, it must be allowed, is explicit enough as to the political associations that formed the states, which are expressly acknowledged -to be free, .sovereign, and independent states; and the King, for himself and his heirs and successors, relinquished all claims to the gov- ernment, propriety, and territorial rights of the s^me, and every part thereof" The statute of the 22d of the' King does not take notice of what the world knew sutfi- ciently, that thirteen of the British colonies had revolt- ed ; neither does it notice, that the persons forming liiosc colonies which iia.l declared themselves in ]V7(i to be independent, were, and had always been the King's subjects; but it merely enaides the King to makc^'a I)ea(!e or truce with any connnissioners who nn'ght be sent by the said colonies, or any of them, or any bodies politic, or descriptions of men within those colonies : and the treaty is altogether silent as to the individiials who formed those well known confederations : it admits the thirteei. ocietics, in their as.sociated capacity, to be free, .sovereign, and independent, by relin(|ui.shing all claim of government over them : yet it does not ex^ilic- itly renounce the allegiance of those colonists, who, at tlie epoch of the war, wore still British subjects, in con- 83 •22hoice, thereby declared OF THE LAW OF NATIONS. 651 tlieir election to be no longer connected with a state which had mortified their prejudices nUiier than be- reaved them of rights: and by that conduct, and by tliose oflences, the devoted colonists forfeited to the law all which the law had conlerred on them. The Ameri- can treaty virtually pardoned their misconduct in form- ing those associations which were admitted to be free : the parliament, by its recognition, virtually legalized the election which the revolted citizens of those .states had made. But whether that treaty, or that act of the British legislature, ought to be construed a relinquishment of their allegiance, with the obedienc? that is inherent lu li, or as a pardon of their laults, whatever were commit- ted^ by forming those associations and taking oaths which we-e inconsistent with their allegiance, is a ponit which needs not be now very pertinaciously argued. The term natitni always supposes something collect- ive, or a body politic. A colony is also a body politic, though inferior to a nation. Each ol" the revolted colo- nies, Avhen it departed from its former character of a 3olony, l)ecame a state, or body politic, and the associa- tion of tlio,.e thirteen states which had departed thus from their charaete- of colonies, formed a nat;,)n, or body politic, under the name of the riiited States. The KinHpiish the obedience of the various people forming those United States: as the American citizens, \w\\o formed those bodies politic, now owed no subjection to the crown of Great Britain, they were no longer British subjects, the terms subjection and subjects being correlatives, such as husimnd and wd'e, father am] son, sovereign and subject, which must alwavs have a reciprocal relation to each other : it is one thing, says South, for a father to cease to be a lath- er, by casting offhis son; and another, for him to cease to Ije so, by the death of his scm : in this, the relation is at an end for the want of a corrcInti\e; and in the same manner, wb n the sovereign relimpiished, by the treaty, in the due pertormance of a legal trust, all claim to the govei-ir.ncwt of the United States, the relation of the AmiM-ican citizens ceased for tb- wa-t of a correlative. The first law oi)ini()u which iiu , 11, \ into np- jiand. on those topics was that of M .i^^-nyo. , elated at Ches- ter, on llie 11th of October, 1783*. and without any • Tlic dufiiiitivc trcruy wa.s signed on the 3d of Soptciuber, 178^. TIio case ciiiy t-t.jod lo Mr, Konyoii the statute 12 Charles II. chap. 18. .sec. 3. 8. o. with this N. IJ. •' Tiiese questionKare put merely to know huw iili OF THE LAW OF NATIONS. 653 hositation lio crnve it ns 111,. ■truotioii (if t]. opinion, tliat " the fair con- «' ;iii. as oircnnista A'oods, the iii <1 ed into th uco of the rniled Staies, may ) comitrv iVoiii tlio ])laco ol" tl noes now stand, is, that niport- )e I 11' ir srrowtli, no- on payment of the duties pavat)le .in no other tcrm^ ly loreifrnors, and Tl up- le next opinion whieh has lai- ■ en 111 my way is (liat of Sir William W vnne. was asHced hv the hoard (/fcnsti which Tnited Slat es were entitled to re< uns, whether sliips of the :isie British eoloni< oxpocled from sneh a jurist, ships as British, hut a.- as s wliich is such an opinion lips of the as was to be against considering such next opinion which The irnev-general, Ar- lias occurred to mo is that of the attt den, m Oct. 178S, wherein he gives it as his judgment, that there can he no trade ])etween the United States and the Briti.-h West Ind liy the King's proclaniat prove, what is sunicientlv ohviou ics, except such ; s was allowed ionjj. All those opinions go to ted States became IVee, sov« in itself, that the U ni- leign, and independent, un- der the deljnltive treaty; and so, mu^t he deemed forei and alien to tlie Jjritish nation ; taking it for granted, that the peoj)le forming those United States must be recessarily aliens. Yet are there books which propagate different doc- ♦bc In-.v staiius iijior, tliof^o efii.ics, without any regard to any orders of eoiiu, il that, m;iy he iwnlc rchaivo to the trado"o: America, midor the act of last .session of i^arliaiueiit." tSee ihi.s i.;.iiiioii, uuiier tliis liead, No. 2. ^ i It wa> dated on the liuh of October. 178:.. The late Mr. Thomas l^ouiie, the ohairnian of the hoard of eustoins, a.'fured nie that the attor- ney ,iiid solicitor -goiicral concurred iu Sir T.\iUium Wyiine'H -opiuion. See it under thi.s head, No. 3. U Sec this opiiiiou, under this lio.id, No. 1. m 1-, 654 OPINIOXS OF F.MIXEM' I.AWVKRS. U i trines, aiul jiersoiis of ina-eiiuity wlic avow notions that load them \t, consi-lri- tlio.-c ritizeiis. ^\ ho Avero horn un- der the alioaiaiK . of ;ne Kinir, to )>o still entithnl to their Iiirtl^rights. as snhjects, under the well known d,- claration of the ireat charter, (hat has l;een alieadv quoted. But every nation and ever', state, under whatever name, inu'-t eou-^;..f oi' individual^, men. women, and ehiU dreii. of wh\!ever nuiuher, audit is those individuals wl'oloiiulhe body politic ol' eveiy such nation and , state. By the defniilive treat w the KiuL'', lirst, acknowledged the a.ssociations ofiuilividuals, foruniiii: the United State,* to he free, sovereiiiu. ai.d indeiiendent ; and, secondlv, reliuqui^lied all elaiius to tlie -oveiaiment and territori- al I'iuhts of the -anie. Aceordiu;:; to (hod tube fret' anil iiiiie[>ondeiit ; yet iU'i- they said to iie suhiects, elaiuii::u; irom the laws of Kntilanil thcii- hirtli-ritihts as Brifi»:h Md)je(ds, notwith.standing tluii' owii^election to l)e I'reo and indep'-ndeut, and the reco-uition of their (dection hy their former .sovereign. Snrlliii' j-ii^cr- ton laid it dtnvn as a principle, in tlelivering his judi;- ment in tlie ea,so of the post-n.\ti, "in n Iruo ,u d law- ful .suhjeet, Wwrc mixA ]w Mi/f J, rfio, fi(/(.>^. (t nl.nl'u ntia, and tlio.sc cannot bo .severed, no more thaji true faith and tdiarity In a true chribtinn*." Now, the notion^ bo- ■'■^ • Sec L>)iil K^rortouB 8[icooii, wlik-h he pullislict; in ICOD, p CI. I preauiiio it in nut nccc^.iury to .•<«y, tliiit wliou the lord cfanDcellor pivcs Lig judgment on dio ttisc bofuro Lim, for hi.s decision, tiiut it becomei a paf* "f die luw of the land, if it bo not nppcalod from, and reverBed. OF THE LAW OF .\ATIO\S. 6')0 fore mentioned would scparnto from (he character of true st.l)ieet, the subjeclion, tlie Ibal fv, and the ohedi- le ,irenume character; and ence, which is so essential to tl after those very citizens of the Tnited States had r-di quished their fuitli, alle-dance, and ()i)e( a( knowledged hv the Kini!; to he 1 lienc- what suhjection, what faith, wliat .bedi and were Vee and iniicpcndent. main in sucli citizen-? \\ [oi'Crr encc could re- may now infer from the :oing- premises, tliat i( is a' un found '>unl in argument, and eil HI an( privil i\v, for any person lo claim the rights leges of a Milijc^ct, Avitl lOU tion, prof I slioNsing his suliiec- the American essuig .lis Ihiili. and owning his ohcdiciicc Y citizens arc fi'cc, an \c t 1 low Not to do as (he\- list • fn- tl d wilJK lit siiltji'ction their freedom and iinlcpend tin pnhlie "^ : so sa\ s the la icy must so use cnce as not to prejudice w of 1 P ihj;, ii pi-(i\ ixtula t-^t j ca-on and polic\-, r. I'liuHt.s :nd statutes t. The learned and elei^aiit Ciaii:- Ir; trine of forei is, I wiiat he owes to his (nic lor Imni iiniier aiiollicr le and of two prince, ill another eminti \ ; for he e.uiiiot kee leeaii-e lie cjiniiot pei-form i- pH! a\\a\ from the (ief I lih fcaltv un- • Cou)!ium!;iiv upon Fortcsoue, 'iOI. t27 E.Uar.i III 1 .' Hi; 28. Edw. III. ch. 5; 23 Huiry VIII ,1, IG; 25 Ilcn. VIII ,1,. I3; 32 Ihn Vill.,|,. 18, 19; J3 iJen. VIII cb. 7; 35 Hen. Viil rh. 1; 1 K.hv VI. ch. 3. 5; 2 and 3 Kdw VI. vh. 37; 1 and 2 P. m.d M.pli.f); 18 Elix. ch. •>. l.*) 17 ; .c Kijj, ^h ^j •i'i Klii. ch. o ; 27 Kii«. oh. I'.), Sec. ■'1 ■ f fl 1 i f tif 656 OPINIONS OF EMINKNT I. \WVER?. tainted und iiiviohito to two lords, to him under whom he i.s horn, and lo his new sovereiun ; iicithe- is it pos- sible tor liini. in case of war between them, to suceor them both, to assist botli as a soldier, to cDnceal the se- crets of both princes, which is chietly ie.|wirrd bv tlie iend.d law. Tiiis able writer enusideis tliis dnclrim. a.- universal in the several codes of tlie Kuropean nations- it is even so b\- the law of nature: no Man, said our Ravioi ''an .serve two masters, for ho will iiale tiie one and love the othei' " If (he feu.l'd law were a braii-h of the eonnnoii hnv, tiien must the notion wliich attri- butes riirht^ to the former ..ibjeets, alter their subjection was relin.piished by their .sovereign, l)e abhuirent to the common law. Tin' Amci-ican citize.is can, tiiereloiv, by no mode of speeidi. nor by -jwy juincipal of law, ol' the law o|' na- tin-e, o! the hiw of nation, of the feudal law.nf tlu' ■•, u- moii law. bo d,'omo<| ibilivh sulijccl-^, mile-s those a-so- eiations of mankind aic ,Mibjrct<. v, ho o\\ - no alloL'-'ance to tlio l>riti-h crown or any obedirnc' (o tKf Ihili^h .-"^■'■'' I": rt of Calviu'.s ca.se, it is said to be a maxim lb, it ii,L;eance is a reciprocal t\c,qi,iasicvt siihdifii.s I, II, fur ,fl 'J..,i;.nti, or what protection .daii.ued, wln-n subjects have reiiomic.d their allegiance. reru.s,.d their obedien. e, and the Kiiej- there- upon renuunce tinlr ,ille-rianee, and release.s their sub- • Craig ou tlio sucuessiou of King .lum.-, :^s. t 7 Co. :,. OF THE LAW CF NATIONS. jection, by acknowled-in- tl.eir freedom and indt eiice ? The Kin,^ liiH's. All A:-:iori( 657 pend- must apply to the King's '-nv to legal protection, ho j i; irive.s protection to his subjeels by his an citizen, claiming his birth-ri'dits owning, and \icldino- ,,}x.( s; and to entitle himself ■how that he is a subiect If 1 he must fail va his oh le cannot do that. iuan m the time of Eiiward 1. who- Hengham: she broiiulit a writ of ims of rights, like the Froncl iwc- dicke, and declared ( C tl !e case is repoited in Cf/r// against Coble- n.ti le seisin of r?oger, her grand- and th r<>- tabli-l.nien( of pence by that treaty, (he subjects and (ontracting jiart'es were not there coidd not d ill wjir an( I 1 Kin: it iieace lie am le-d impediment to h-gal reme- thv les for jest del.l-; h;,t i„ contempl.idun of the treaty, power ,iud (he citizens of the sulijeci^ of tl le ii:ie other had b lue thereby aliens to each other. Tho • The lord rhmecUor Kgertnn's 5prceb 91-3 81 G58 OPINIONS OF EMINENT LAWYERS. same observations may be made npou the uth article, whieh provides lluit persons having an_v interest in con- fiscated lands, either bv debts, marriage settlements, or otherwise, should meet with no hwful impediment in the prosecution of their jnst rights. It ma>- bo more- over rejuarked that Adams and Jav, two ol" the Ameil- lean iiegociatojs, were lawyers, tliL ucst being ohiei' jus- tice of Massarh;;-^ctts, and the last chief justice of the United States, and both Adams and .lay knew the mean- ing of their own terms, whatever the Hritish iiegociator may have done. This reasoning is contini xl by an ar- ticle in the couiuiercial *-eaty between Great Britain and the Uidted States, which was neg>jciated in Novem- ber, 1791, l)y Lord fh-enville :-.d the same John Jay: it was agrci'd by artich- 11, -that Britisl; .subjects mLo now hold louls in the Tnited Slates, and the American citizens wli) now hoM lands in his .Alajesty's dominions, shall cnntimie to |),,Id them accordii-g to the nature and teuMre nl' their respective states and title.- the -]n, and may grant, .-.ell, or devise the same, a.s if .'ay were na- tive.^ and that neither tliey. um tlieir heirs, or as>ign.s, sliaU, >o i;,r as may respect the .said lands, and the legal remcili.'s iueiden* tlieieto, be regarded as amens*."' Is • Tlio ?>: (.00. Iir. ell, '.);. w.is iii:i,l,. Cur .-.orrviiig into rxooii'ion that t.v;it\- nf cniHii, rr... liy scrtioii - 1. ilu' ',t||, „rticlo .'ilmvo Stat,,! wa.s r.-it- ilifd, any law, iii>i(.iii, or ii>.:if.,., to ilio contrary iiut« lll.^t:u.dinf.^ Tlio artitl,. iM'turc niri,ti.,ia.d wa.s n.lui.l.d by tho ncgucialnr-. „r ,i, as tluy consi,!, r.Ml the |„...|,1,. ,,f Great Britain, and Cdtcd State.-, to l'„' aliiii.s to cachollur; and tlu- j.ailiai„.-nt .Mnfirnu.d t\n^ -.hUvU; ,-, „/w,i,/„„fe cauulu, i.otwitl.Mandiug tlju wdl known law, -ust-.m, and u^^ago, to the contrary; yet aro thero some, who consider this ,-tatuto as a proof, that the citizens of the U nind Slates aro >,nt aliens. There is another stat- ute, whiih also ^bcws the bcn.se of parliament on this t,.pic : the 30th !.e" 111. eh. 2r. for CDcouroying the scttliti^ of tlic Hritish colonies, hy itihalutants from the United Slates, re.(uiivd ,s,„i, cnignmls i., the lint OF THE LAW OF NATIONS. 659 it not apparent then from the foregoing intimations, that ill the jiidomeiit of the negociators of the .several trea- ties hetween Great Britain and tlie United States, and in contemplation of parliament, the suhjects of the first country and t'- ■Wizens of the last were considered a-j foreigners to c Hicr? Yet !>.re we still told that those people of tlio United States, who were born liritisb. subjects, even now con- tinue to be entitled to their original birth-rights ; and for this singular notion the great charter of English lib- erties is (luoted, that iio freeman shall be outlawed, or any way destroyed, except by the judgment of his peers, or by the law of the land. But is not this argument cons'eived upon too narrow principles to appiv apposite- ly to the present cpiestion, relative to thousands of num, rather than to (me man >. The fundamental piinciple ih .sound law ))ut it does not reach the ease ol'tlie irdiabit- auts of thirteen colonies, who revolted from iho British empire, who rose iu arms agaiu>t tlie iving's govern- ment, rcPoiiiirMm- tbrir aHegiance, and claiming their freedom from any furtbcr obcdicn.'e to i>riti>ii laws, an^l acting tluis again-t all law dniiiii:- ions, as u claim of n-bts without subnilssinii, ro/,i)fi nan- ^tit injuria ; _)ouhave ''''■''''•'' •" be aliens, and von have been recognized by the Kuii:-. the I'onntain of all jiu-hsdiction, to b,' what \ ou have cho-en for yourselves; and the laws, from which i;h coloiiifg, to ti.ki> tli,' oafh of allegiance, upon tlirir :irriv.u arnl settle- incMt; l,ut, in this caMo, none but alioiis wuulu Ik.v.I.iou re4uircd to take tin- oiith of nlli gi-jice to fLe king. 660 OPINIONS OF EMINENT LAWYERS. jou claim y-u- rights, cannot acknowledge you in any other character than you have chosen for yourselves, and have been recognized to belong to you: you profess not to owe any allegiance to the King, or obedience to hi.s laws n,[ under such cireunistauees, you cannot ro- cei\e protection from either, whatever rights you may have once possessed, quod o^t inronvcnUn^; cuit contra rationoii, noit [>• nni^ssiim est in fa/e ". In (he argument of the instructive case of Campbell and Kali, in Hilary Term, 1771, it was said :>y Mr. Al- LEV.\, the learned counsel for the plaintiff, '^the techni- cal learning of Westminster-hall can give but little a.s- sistance to the derision of this que-Mon. The ,"-reat' piinei].les of tiie law of empire nuist determine it, and the polilica' history of England affords particular illus- trations of it." Thi.s course must again be pursued, in illusti'.tthig the ipiestion of tb.e alienage of the Ameri- can citizens, which may be inrpdred into under two heads : Jst. How aliens may become subjects ; 2d. How subjects niiiy become aliens. As .:, the first head ; it is in gvnerii true, that an al- icn b<,rn, condng int.. Kuglaml. and .b-iii,,;.; to become a subj.Tl, vanuot be iiaturalized but by parliament, ihat is, wltbuiif tlie.'oiK.Mit .■!tlic n.tiun: this ..f.'ms to'bav bron ,Mlw;i\sth,' l;.w c.f Kii-laud, though it wa.sothcr- iii Xoiiiiauaturalizali(in, according to our law. can onlv be by I-arlia.,i.Mit, and not otiieiwise t." There nnist be siu'e- h .some mi-iake here, as such a , judge could not have so far allowed his vigihuice of olj^crvation to have shor,- bered, as to .siy that naturaliz'ition cannot be otherwise •7 Geo. II oil. 21; 13 Geo. II. ch 4; '20 Geo II. oli. 15, -Geo. Ill ch. 25; 13 Gea. III. cli. Zj; 2J Goo. III. ch. 20. t 1 Vent. 4l'j-20. '\ ! _.-' . ft ■J V - i*! 6G2 OPINIONS OF EMINENT LAWYERS. than by parliament. The chief baron, it seems, did not advert that thousand.s and tons of thousands, millions and tens of millions of p- ople have been naturalized by the act and operation of law and tluis became subjects. Mr. Wallace, who ar«,aicd for the defendant in :he case of Campbell and Hall, remarked, what may well be re- membered, <'It is not, as formerly, when the conqueror gained captives and slaves and absolute rights by the law of nations, but now, the conqueror obt'vins dominion and siibjects." This beneficial change probably took place as early as the age when tiie ravages of the Danes were softened hy the introduction of Christianity or pre- vented by the ])rogrcss of civilization. There is howev- er but little in our law books, as nath been already inti- mated, of naturalization by conquest; for slow is the pro- gress of jurisprudence as a science: yet was it said, " If the King of England make a new coinpiest, the persons there born are his subjects; but if it bo taken from h''m again, tiie persons there born, afterwards, (after being conquered,) ar.' aliens*." This was saying but very little in ad\ance of;- more rational c(",siruction, as it is not said that tiu' alien ,)(Mtpl(> who h;.(l been conquered by the arms of the crown became subjects of the crown by act and ojieration of the law. It is not ea >v to as- certain the epoch when the law became thus understood; 1 .should guess (hat such a princl^ ., of law became prev alent .soon after the arrival of the Normans, who argued vei-y acutely aliout sovereigiit\ and su])jection. It was certainly un(lcr>too(l as i ,nly as the reign of lleiiiv It. when liu' people of Ireland weiv sup[)osed to have be- come his subjt'cis, from his coniiar\- right of sovereignty, pi'opriety, and possession. These expres- sions were deemed by l)e Witt, and tacitly acknowl- edged by Temple, of sniHcient force to transfer the alle- giance of the Dutch colonists at New y(ak to the En- glish crown, who thereby became sul);e';t-;, as Lord Mans- field remarked, and ceased to be'considered as enemies and aliens. The next opinion wlTudi I have found is that of the attorney-general Pratt, in August 17-jri^ who, with the policitor-general Yorke, wns consulted bv the hoard of vusicmis on the effect of the recent capitulation of Guadaloupe. His opinion was, that this islind must be considered as now one of the British pliintations; the right of sovereignty l)eing changed, the whole island as the King's, in .ight of conquest, and the whole colonists as become hi.s Majesty's subjects •. Mr. Solicitor-gener- al, C. Y^orke, gave a separate oi>inion on that occasion to greatest deference to the oi)iiiion.s of tlio law offieprs of tlio crown, wlicn formally given, sec:. is not to have been aware of the opinion of the At- torney-general Northey, in 1701, with regard to tlio [lait of St. Christo- pliCrV, ilion recently ton.|Upred. "Her Majesty may." .siid Northov, ■■• if .slie sinill l)e .so pleased, under her great seafof Kn.trland, direct that the like duty (of four and ali.ilf per cent.) belevied, for goods to he ex- ported, fr'uu the -onuuered part; and t!iat co imiand will hen law there; her Majesty, hy her prerogative, being enabled to nialie laws that will b'nd places obtained by eonnnest, and all that .shall inhabit therein." This proves also that tho.sc coni(nered people, beins now oliedient to her power, were Jubjecf.s and not aliens; as she could only ic-islato for such a people, by acts under the groat seal of England. * Sec this opiuiou, uuder tiiiii Lgad. OF THE LAW OF NATIONS. 6(35 the same effect: "I am of opinion," s-iid Ik-, '4hat Gua- daloupe is now to ha considered as a plantation or terri- tor}^ belonging to the King hy conquest ; and the peo- ple thereof owed in consequence an allegiance to Lis Majesty, as his subjects resident in a ))lantation behmo^- ing to liis crown *.' .Yet some doubts being entertained by persf)ns abroad and at liome, whether the Frencli and .Spaniards who remained in the ceded countries af- ter the peace of l7'"-3 were aliens or subjects, the attor- ney-general, Norton, gave it as his opinion to the bcjard of trade, that 'those French and Spaniards are not to be considered in the light of aliens, but as his Majesty's liege subjects/' Yet the bill in parliament whi<'h he advised for (piieting (hose doubts, was never passed, por- hape never proposed ; as Aviser men than Norton, prob- ably, considered ch advice as weal- ; the hwv beino- clear. Who could doubt, whether such French and Spaniards, being the King's subjects, and not aliens, Avere not entitled to the rights of subjects ! Loid Mansfield delivered it as lie judgment of the court of King's bencii, in the before ni'.ntioned case of Campbell and Hall, "that the law and legislative governin-iit of eve- ry dominicm eciually affects all persons and property within the limits thereof; and is the true rule for the decision of all ([uestions arising there : whoever pur- chases, lives, or sues there, puts himself under the hrv of the place. A.i Englishman in the inland ol" Minorca the isle of Man, or in the plantations, has no ])rivile"-e distinct from the natives I ." I have now delivered ex- plicitly what has occurred to me on this first head of * Sec this opinion under tliis hciJ. t Sec the report of the case of Campbell and Hall.— Cowper 8d !■ y Ml 006 OPINIONS OF EMINE'.T LAWYERS. arsumcntatioii, Imw aliens mav hecom(> subjcctis, which we now see must, aiul mii_\ , be (lone bv act of parlia- ment, or by the operation of law. By such operations of law, it is not too much to assert, that there have been acquired t'. the British empire, since the commcucenient of the p'esent reiirn, forty millions of snl)jects. Secondly, I will n )\v ])roceed under this second iiead to in([uire how subjects ni;'y become aliens .' The per- sons and the ])roperty of the English people have been guarded wiih great anxiety by their laws, which have made surety, in those respects, double sure*. Yet did the common hiw, as we may learn from Brac- ton, allow of disfranchisement and of banishhicnt: an in- dividual might be interdicted his province, his city, or his town; or he migh' have been interdicied his king- dom, for years, or for life ; and abjuration was a legal exile, as well l)y the statute law. as by the common law t- Yet neither tin? law of exile nor the law of security applies to the present o])eration, which relates to many subjects, not to one subject; and which tunis upon cir- cumstances of national policy, and not upon points of judicial jiractice ; it involves this high consideration of public interesi, whetlu r. if the slate be in aan^ t, the lights ol the lew may not be sacrificed tn he benefit of the many: and the foregoing considerations lead onto the ini[uiry, whether, as subjects may ln> obtained by the act and operation of hnv, subjects mav not be reliiKjuished also, by the act and oi)eration of law. * l>y tiip groat charter, ■ uil^\ ;ia.s Icon so often eoi;Grnie would not be correlatives. II ject>^ AW:' ;>' d sub ence we w.^x mle as iect the Lord-chancellor iiitimated, that the t sovereignty, o'-d subjectiont: if the sui>iect rue C(irrchit:\ IS arc iun be with drawn, and so admitted, the sovereigntv is o-one; if the sovereignty ,,l- removed, then is the sultjection gone ant tlie sulijection lieing gt)ne. thi? peopk tion, are no longer suljects; Ibrth which cj.nnot exist without each olhciv owing no siibjec- dl ie\- ur" ail eorrehitive.- On tl -econd head. h(n\' siil)jects ma\- l)ec oinc aliens any more than on the lirst, it IS no t to be wonder eii a.s Lord Mau-^iield ] eiiiarked, tha' i adjudged case in point oaniiot be pnnliiced : no disp way ever started before as to th; Kings ]io\ver. in making a treaty of peace, to reliiiipaish a i)roviuce with the allegiance of th cial.s. e provm- * His spopch, printed 1609. p. 101. tibid. 73. 668 OPINIONS OP EMINENT LAWVER?. But ii- WO (race this point historically, the operation of law will i )ec()nie very apparent. The Lord-eUanctaioi. Egertoii said what all the judges indeed affirmed, in ar- guing the case oi! Uw poyi-iiiun vegi'^ /'/'rr/^r/'/';) and therefore he cannot be a stranger or alien to the king, or in any of bis kingdoms; and by con.sefpience is ena- bled to have lands in England, and to sue, and be sued, in any icnl action inj- i|k> s.ame *. Kin- .b.hii th,. \oungc-t son of II. •ly II. lo^t all those^ Frcii.b doiuinions to Philip, the I'rcnrh king, iu 1201 1. T^pi.n tbi> tran.sactioii, whereby Kngla d lost so many provin. , i,;,t was the operation of law / Is it notappannl thai the pcopl.> „f those |,rMvinccs no longer iviuaiurd ,^/ y^VAm m/zv, in obedience to John, and that they niiHt have sworn fealty to riiillp / When the sovereignty of tho..e proviuc. . -hus .-eased to be ui • Tho Lord ili!im-llui : and Edward III. claiuie.l all Kranct- by ,k..,vnt In.in Ins mothrr,and had the most part f it in possc-.ssiou ; and so had Henry V. and IbMuy VI. Now, adds the chancellor, in thoso king's reigns the subjects born in those countries, being • Fitz. Powtr, IT. I. t Tlio Lord cl.aiia-IlL.r K^'ortoii's Hpcodi on tiio Pnstnati, l!), M X Hvin. Foed. I. -r,0 the writ tluToi,, ,..,„( r.i w.i.s tested, l.y tho jMst.f.ary of Kn.h.nd. who knox. ,l„. nu.unnjr of |„^ own t., n. , gh.rj voucl>..d ,h,. CMM. of ft Norman, „|,.,, witl, sum,. |;„l'1 .1,, l,aa r.,l,l„..i di vers of 11,0 kin^-. Rul.j.rt.s, ,„ tl... narrow .s,.,,Hi a,.d who iMMOLMikcD and nr.ai^rncd, fl.r .Norman was fo„nd puilty only of U-Uuy, and tl o rost ..t .r.aMM,; |..r that N„rmandy l,..,ng lo»t by kmg Jo'un, »,.., out of ihc aih-«,unc,. of Kd. in and tho Norman was accoiincd an alien. .Shard ([uoled 40 na«io, pi. -ZX ; and s.jo Cidvi«-a cw.o, Tth report. 670 nPT.VIONS OF F.Ml.\E\T LAWYERS. then under t'u'ir nhLMlichco, were no aliens, l)iit capable of laii'l- ill iiii! I.iiid •. Ilistni'v must toll how those king-sot' Kngi;iinl lo^t lliose doiumions in France : .did the obedience of (lie people (f »'"■ ii.ni"ii. Hi(h the ^kilfiil valu.df their l.'aders. such tiiiL'-b' .if more tb;in forty year<, they con^peHed ivl- ward III with ilica-int <^f his parhaincut to a.'knowd- «'dL:e tbi> iinlcpcnd.'nce o| Si'otland J. Tbi' sovereiu;ut v • Sptooh, lOOit. Gl, 5. t There vtns a previous net of parliament mnde, nt Vork, . tlio L^l of March, i;i-,ir-S, entitled, Jlr/u.rutio si//}crioii/ufis .^y//im, 337?. Sir Kdwani Coke, and 8ir ^t.-if Hale, in >!iaoUMing the connoiioii of the Kngli.sh and or THE L4W OV .\ATIOX; G71 of England, and tlio .«ul nounccd ; tho i)coi)l(' ol' Scotland iniission of .Scotland, were re- he free, and bucan wore iickf.owlcdged to le ot course aliens to En-rland, as the suoscquent events evince, as tlie treatv df Pcitli * 1;)-5.) plaiidy. shows; and owinir to tl pie of England and ol'Scotland m ose ( mses. ll le peo- er at the epoch ol" King .JanicsV a sonings of the judges in Cal were aliens to each oth- ceession as the rea- (, vm s case demonstrate, onie we now to the case of Calais, which is sohk \v hat singular ; in l.MT (, It was taken h\ Edward III. who invited English uk rch:!nts to settle in it it now partook of a mixed natun so that of a connnest first. and of a cohmy afterwards, something like tlie condition of St. Christophers after its col In 15o8, Calais was retaken hv !• two hinidre(l and oin'zation and connr.est ranee, a t tl le eiK 1 of leven Acars eoniiexi on. uer the treatv ol' ('1 •)■)!), uu- Kileau ( 'ai nore- Cal main eiglit years in possessi lis was to rc- on ol restored, pro\ ided (>ueen Eli/.aliel iiice. and ll IniiaxiM tl u to 1 widl in the mean timet. But Kli/aoeth and Cecil were med- (llers hv natuii' ; and th of Scotland and of |< ley woidd inti'rfere in the allairs lanee : so Calais remained in the lends of the con.|nerors. Tiie sovereignty ..f Calais seems thus to have remained during those ei;,dit vears ill a sort of altevaiice >\ ho were horn tih le were iiid duriim- thai per <'learl\- a! I (■ 1 1 ■ i('(|j person.^ as the\ were Scots lllWS. wrnli' l.llt iill ,■!■■ lllcy •-IM'lll tldl to II troiiij 111" Nnrtl VII, l!i;it tlui ililiililiin Hiis iiiadi' iiiidcr llii' ;nill o rw tli:it it iiHniitit : but, Sir lJul»tn>(lc Wliiiid poaic lirtwccn KiijrlniMl and ^^iotliiiul, 'J Kil. 111. pariianin •, at Northuii-; lun."— CW/«rM/ira Jurith •t' l\MI Ml t.S l.f ■■^, 11 I'd M1\.S, ' par- 'the "luluiicd, liy the (ta, ii. 331. >ro tlio licniy, in Av< .-l,iiry, ai-'i?. t r |{ 111. .lO.'i, k* >.*wi- , tho presi.li'iit H.Miault'sAbr. Chron. i. 47C-7 f »' \ lol.- 672 OPINIONS OF EMINEXT LWVYERS. b'lrn out of the liijeance of flic kiiiir, and in a country out of the possession of Jio crown. The wliolc people afterwards were considered as aliens, by operation of law; as the sovoroiiiiity of tli(> town nnd the subjection of the people were h^th lost to Eiifrlnnd for ever. Let us now advert to the condition of Sniiniun and Ntw Vork, nndei the troatv of Breda. KiliT, when Kn"-- land ceded th<' first to !I(.!land, in full sovereijxntv, pro- priety, and possession; while Holland, in the .sime man- ner, ceded New Vork to En^liMKl. Durini: the eflluxion of the preceding; centui_\ . the law of nations hiul been very much discussed by (irotius, 8elden, and otlier em- inent jurists; and statesmen now arirued ever\- ca.se arisinn; from events, with more accuracy, and decided with more pre> ision. Tiie disputes ai-isinu; out of the treaty of Breda, came to be settled by .lohn do Witt and Sir William Temple: de Witt ^-ave hi^ ojiiuiou in a dis- course, which is hereinafter printed; and he was an- swered by '['cinple, whose paper is aUo juiuted: it was plainly insisted on by the oi;e. and t:) ith' a<;reed bv the other, that tile Kuirlisa who n-maiued in Surinaui be- came Dutch subjects so ( .luipjetciy that they })ecame aliens to Kngland, and could not even appl\- to their native country in any luaTuier. for aid or consideration, tonsisti'ut with the law .f nations. In the s.aiiie man- ner, the Dutch peojiK' at Manhattan, as New York was llieii called, becuiie completely ^;nglish subjects and al ieiis to thi'ir native land *. * III- to 111' ri'jjrcltcil, llint Sir L-oiicl .Tciikiiis, wiio wn." tlwii tln' Irjul- ing civilian, did not aiiswc !).• Witt; .n^^ wp should liavo li.'id diM'lo.scd (noro lai^, flmii Temple scciii.'! to havo powi-.-sscd : iriv i c'oiircl"" Inad m6 to.sijppo.se, tli.it tlu-!i' wa.H no ! v. opiiii,),! .iskrd, \,y tlio r,Mj;li>li piMrn- mniit, on that oci-aaiou. The Eiigli.sji pooplo wore aftirwardn removed from Suriimin. OP THE LAW OF NATIONS. 6 no The wars and the treaties of subsequent times do not supply much intbrmation, and throw scarcelv an^ light on^ this heant there .vas a proviso that the French subjects might ■"move if they sliould think fit; or if they should re- main, to enjoy ther religion as far as the laws of Britain allowed : this form of words .shows in what manner an act of parliament limits the king's pf)wer of making trea- ties; and there was .ilso a proviso, that commissaries should be appointed to settle "who ought to 1>0 account- .(i the subjc'ts nd friends of Britain and of France;" alluding chiefly to the American Indians, a.s the frinuls "f '"'111 parlies. From Spain, Britain obtained Gibral- tar and Minorca, in full sovereignty, a.id iho a-^wnto •nidc, according to former stipulations; Gibraltar and Minorca have always been governed as conquests, but the as-siifito could not be received, according to form.T stipulations, as it was oj)posed by the nci^ of navigation. Here are sufficii-nt illustrations of two of our principles of law in respect to treaties. 86 II 674 OPINIONS OF EMINENT LAWYERS. " -si T!io popce of Aix-!a-Chapelle, 1748, does not supply, though it pioN-des for mutual restorations, any instruct- ive :')sofvation. Yet the war which was then ended ought to be deemed productive of much information, if it produced nothing but the report of Sir George Lee, tlie j'udge of the admiralty court, and of the advocate, attorney, and solicitor-general, Paul, Ryder, and Mur- ray, on the Prussian ships carrying neutral property*. There were published, about that time, various worka on similar topics, Mhich certayily made the powers of J]urope much better acquainted with the instructive doc- trines of the law of nations. The jK-nce of Paris ITGo, as it retained much, and pave 1 it little in return, left a wide field open for illus- tiativo (-bsorvation. The French King again -relin- (ini-hcd the whole of Nova Scotia with all its dependen- cies, Cape Bret.ni and the other islands in the gulf of St. Lawrence, Canada wi'hall its de])endencies and peo- jile. Tlie King of Great i3ritain, on his part, granted to the inhabitants of Canada the liberty of tlie catholic re- ligion ; iie allowed the Canadians the freedom of selling their estates to his subjects, and of letiring within eigh- iecn months; but there is nothing said on the ligeance of the Canadians if they should not retire. The sover- eignty. pro])ertv, and possession, of tiie cnuntrv of Can- ad i, was ceded by the Most Christian King; and of course, the subjection and faith of the inhabitants, who • Co//'vfiirt JuriiUai, i. No T).— Tlicro !.■*, \\nv\n, n nofo, utating timt, 'Mhi.s report cciiilnins a tliorotigh iiiv(>>li;.'utinn, aiiil jiLStification, cf till- iTiiiciplfNaillierdi (o, by tlic cdurt nf niliiiiralty, in Kiiglaiul, in eaJes of captiiro of tlic ships ami proiirrty of ni'utr.il power?', in timo of war. It w;is LMimposcd on a ..iciuor^ihlo H<-ivi>ii.,M^ l,y il,,< uniteil abilities of tlio proat law i iVut rs of ihp i-rown ; and has ever since been receiveJ, as tho itauJard liutl.urity, in ca.'ies ol that nature." OP THE LAW OP NATIONS. G75 thereby became subjects of the crown, and who, of course, became entitled to the several rights of Mie Briti^^h sub- jects. The King restored to France the islands of Gua- daloupe, Mariegalante, Desirade, Martinico, and licli.sle; withaprovi..othat the King's subjects, who nn'-ht have' settled in any of those islands, might retire with their effects at any time within eighteen months ; but tliere is nothing said of the King's subject^ whom he iud con- quered thereon, or who might have been born ,.ft.M- the conquest and before the restoration ; they were relin- quished, by operation of law, as well as in fict. Those clauses in this treaty, and those circumstances, c.n.e up fully to the law which has been alreadv intimated fn.m Dyer and Yaughan, " if the King of England make a con(| lest, the persons there born are his sub,ieets: but if it be taken from him (or he cede itj ^he person. tb;.re born („tter such cc-ssion or capture) are alicav f l,ut how did they become aliens? The answer mu^t be by act and operation of law. This general principle may be illustrated by other clauses of this memorable hvatv. The Christian King ceded Grenada and the Grenadines to Great Britain, with the same stipulath.ns m lavor of the inhabitants ; who might retire, but, if thev remained k'came subjects. The neutral islands were'partitioncj HI this manner: St, Vincent, Dominica and Tob,,.-o re- imuned to Great Britain ; St. Lucia was dclncrdto France; and from this stipulation it followed, (1,,.,( ,|,e French people became English subjects ; nnd the Iav. lish planters o,, St, Lucia beca.ne Frencli subjects, if tiny- remained, by the act and operation of law. Great Brit- ain and Spain arranged their conquests ia this manner : •D7 22'.; Vaugh. 281-2. 6T0 OPINIONS OF EMINENT LAWYERS. Britain restored to Spain the Havana and part of Cuba : Spain ceded to Britain the Fhiridas ; and the island of Minorca was ceded to Britain, in the same condition as when conquered: so tliat the Spanish people of this is- land, who had become English subjects when originally conquered, became again English, bj a sort oi jus poHli- minii *. The treaties of Versailles, 1783, are less glorious, but full a.s instructive: Great Britain restored to France St. Lucia, and ceded Tobago. The British sul)jects in both were allo'yed to retain their possessions or to retire with- in eighteen months : France restored to Great Britain, Grenada and the Grenadines, St. Vincent's, Dominica, St! Christophers, Nevis, and Montserrat, with the same stip- ulations in favor of the French planters. Great Britain ceded, in full right, Minorca to Spain, with the same stipulations in favor of British subjects: Great Britain also ceded to Spain the two Floridas, with a similni proviso that the British subjects might retire ; and Si.ain ceded to Great Britain the Bahamas, with a similar stipulation in favor of the Spanish subjects who might there remain. It is quite apparent from the f.^regohig facts and reasonings, that those alterations of sovereign"- \y changed the nature of the ligeance of the people ; so that tliey were aliens or subjects, accoding to the na- ture of their residence and subjection. ^ After this full discussion of .so maiiv treaties let us again advert to the definitive treaty with the United States; when this subject was considered in the hou.se of lords. Lord Loughborough said, that the King could not, in virtue of his prerogative, cede Canada or Florida ,'^1" '"•■"•'"' "^ Fabripa-s and r,,>.Rral Mo.stvn, wl.i<-li wns derided in 17/3, by a vordiot of three thousand pound.s n<;ain.st tlie (M-rernl evin- teg, suiliciently, iLat the Spanish people of Minorca were Eudis'h sub. jectg. '^ OF -HE LAW OP NATION.S. 677 without the sanction of parliament. The Lord-chancel- lor, when he delivered his sentiments, treated Lord Lough .jorongh's opinion with no great res))ect. What has been so often done before, could not be done now : But what sort of logic is it, to reason against facts ? When the same subject was under consideration in the house of commons, with respect to the powers of the pre- rogative, Mr. AVallace and Mr. Lee maintained that the King could not abdicate a part of his dominions, or de- clare any number of his subjects free from obedience to his laws: the contrary was asserted bv the attorney- general ; and both parties pledged themselves, if the mat- ter should C(mie regularly into discussion, to'make ^ood their several opinions *. But the day of discussion nev- er came, ami all wise men saw that such extravagant doctrines, though they might have done verv weH at the sad epoch of civil war, could not be sobeVly main- tained in time of domestic quiet. The King most r-- donbtedly enjoys from the constitution the" exclusive ].ower of making wai „d peace: this, is a fundamental principle of the law of nations; it is one. .f the pillars of society itself; and it has been argued by writers on the law of nature and nations, that though individuals, an- tecedent to all society, (if such a sun. .ver existed.) had the right of war, this right was „iv(Mi up wlien they en- tered into society: it is said to be upon the same ])rin- ciple that the King enjoys the sovereign jiower o Snak- ing treaties, leagues, and alliances with foreign states and princ(>st. But was there not an act of parliament • Annual Register, 1783. t Tf, however, it wore m-cv^siu-y I, hy nn or take off taxes, tlic king cannot do thi,s witliout tLo provision of parliament ; if regulations have been previously made under parliamentary authority, as in the case of ■ t / !1 678 OPINIONS OF EMINENT LAWVERS, ' , I made to enable the King to make a peace with the Uni- ted States ? Yes; yet is it singular to remark, that the said act was not used: it was neither recited nor allud- ed to, in either the preliminary, or definitive treaty of peace with those thirteen states. The King's constitu- tional power was deemed sufficient, without the special statute, which had been suggested e.r ahnndante ccndela by the same spirit which suggested the repeal of the ' stamp act; and thereby created much of the mischief Avhich was now pressed upon the nation for remedy. The history of our diplomacy evinces t)yj truth of ihe general principle which is recognized by every law. King William, by the treaty of Rys«ick, granted and received cessions of conquests in war. Queen Anne, by the treaty of Utrecht, made some cessions, and received more. King Geoi-ge II. by the treaty of Aix la Chap- elle, agreed to cede and receive all conrpicsts since the war commenced. King George ill. v the treaty of Paris, receive.1 umch and cedec' little. Bv the peace of Versailles, 1783, when the treaties in question were made and ratidod, the Ting granted t. France fisherie.s, factories, islands, and territories, and received much in return The King ceded to Spain the island of Minor- ca, and the two provinces of (he Florirla^, and sucli oth- er countries as might have been taken, and received in return IVom Spain, the Bahamas. It was the ophno,, of NewfounJland a.J Its fishery, a treaty cannot warrant tl,c repeal of such reguIat,o),s , as ihi.. n,.st be dune by parlia.nent „r not at all ■ so,i„ n.aking co:n.nerc,,,l troati,.s, r,.i,n.lations are to be made or repealed ,v!nch can only be done l>y parliament; and .f parbamcnt disapprove of such a treaty, ,t nuu. fall. All those eases arc exceptions to the general princi- pie of the royal power to make war and peace. OF THE LAW OF NATIONS. 679 parliament, that too much had been given to those sev- .ral powers, yet this opinion did not nullify or vitiate the treaties: it only operated upon the responsibility of ministers, whom it virtually removed from the power of doing further mischief: this is mei^ely a collateral point, which, according ro the wisdom of our ^o the independence and sovereign- ty of thirteen revolted colonies / Could he renounce the government of the people tonning those United Stated in future I Could he renounce, of course, the subjection of the people / The answer nuist be in tlie allirrnative; he renounced at the same time other provinces and is- lands, with British people thereon, and no doubt has been made whether those territories have not been le- gally ceded and the subjection of the people constitu- tionally chai.ged. Altei- the restoiation of peace, an a- gylum was oH'ered v.ithiji the remaining colonies to those colonists who might thiid< tit to retire froui within the United States; many did retire, but many more reinain- ea,and the question is, whether tliose who thus remained, and were acknowledged to be tree from subjection, and independent in their governments, could nevertheless claim the ])rivileges of subjects i If tlie be alien . by the renu.. 'iation of their submission, they cannot claim the privileges ol . ....jects; and that they are aliens is clear: since they do not poseess any one of the charac- teristics of true and lawful subjects, they 'lave neither ^iihj^y) noii !(i.-iiira j>opiiJi : but altlidugh the King never could, ;ind cannot now, disfranchise any subject, y{}\ his (><>urts of justice could, at comnum law, disfranchi.se and outlaw his subjects on propi-i- process issuing upon the delimjuencies of the oHending p.irties. i t)F THE LAW OF NATIOXS. 681 In the same manner, wi\en the Kinf,' e\-ecntes the frreni trust of making treaties of peace, wherein- i)roviiiees are ceded, and the provincials, though unoflending sul.jertH, are disfranchised, the law will justify and warmnt what it empowers ;:.. ! eir iMes the executive authoiity to per- form and enforc. • anri a disfninchisemeiit performed in this manner hv the Kings negociidors, is ns niuch done by the law of tli^ land, as au oiitluwiy pr..noiiMce tn(/o re^ni ArujltT <^t Lex AmjUr. Mr. Professor W'oodeson indeed in''.rnis us, that when by a treaty, especially if ratified :,, .,.t of parliament, our sovereign cedes any ishuid or region to another state' the inhabitants of such ceded territory, though bta-n un-. der the allegiance of the king, or Ociug under his pro-' fiction while it appertained to his (;rown nnd authority, became ellectually aliens, or liable to the disabilities of alienage, in respect to their future concerns with this country ; and similar to this seems the condition of the revoltc'd Americans since the recognition of their inde- pendent commonwealth *. Now let us listen t<> Mr. I'rofes.sor Blackstone, who says that "Natural allegiance is a debt of gratitude, v.hich cannot oe forfeited, cancelled, or altered, by any chance of time, place, or circumstonce, nor by any thing, but the united concurrence of the Legislature r' * vet Profes.sor Blackstone had already well argued the kiiig's • Wood .son's Vin. Lectures,! 38-2. This Inw h.. boon collected into Bacon's Abr. 1708, i. |-«.». I have arpieil the .several Point.s npou con.mon bw principles. To introduce the ratification of pa.liamer.t ia to weaken, rather than strengthen, the argument, from these rrii.eiples • If parliament decide, it is decided; no one .,gucs with the nuini^.-ionce ot parliameut j ei one contends witli the omnipotence of parliament I • 1 Blacks. 369. 87 682 OPINIONS OP EMINENT LAWYERS. ¥ > constitutional authority to make war and peace, from the law of nature, from tho law of nations, from the law of England : the Professor thrrofore wrote contradic- torily, Avithout knowing this unhicky cinMmistance. — His general position is sound law : thai natural allegiance is such a debt from the subject, that it cannot be altered or cancelled by the act of the party himself oven with the concurrent help of any prince or ])i)tentate or pnw- er : it must be relinquished by some act of law, wliidi amounts to the assent of the king and nation, and a solemn treaty is that nece.ssary act; l)iit the cnnchision of Blackstone's position is not law, as he words it, yet may it be made law, by adopting the emphatii'ai lan- guage of the great charter : no freeman shall f)e di'stroy. ed or disfranchisei', but by the lawful judgment of his peers, or by the law of the land, whicli is tho safest lanrruage, on occasion, of this .sort, as tiH> law will at- tach according to the necessity and nature of the case before it. Let us now hear what the judges sai.l in CjilviuV case;* " so, albeit the kingdoms of Knglin.l and Scot- land should, by descent, be divide.] and gov,.,-,!.,! by several 1-ngs, yet was it re.solved, that all thos,. that were born imder one natural ol>edien( .>, v,lii!- the realms were united under one sover-ign, should remain ,iatnial- born subjects, and no .aliens; f,,- that naluiali/.ilion, due and vested by birthright, cannot, by any separation nf the crowns, afterward l,e taken away, nnp be that 7 Co. 27 b. C; ■ 'KG It report of ('i,,viii's ens,, wn^i rr[.riiil \^ atflon, at Eclinburgh, ill IIO.". when parii. ^ ran hitrli, at •!:• Mi,i„M, .' for the inforinatiou v{ such n.s rr,,,,!.! know ilie rights and privilc^;. - of Rro.'^moi. rr.i.iing in England, and of Kiipli.,|,nirn omuu g i,, t^cotlnml " I liavi iu my library a copy of tbia rcpriutcd nport. OF THE LAW or NATIONS. 683 was by judgment of law, a natural subject at the time of his birth, become an alien by such a matter ex post fact) ; and in that case our po tnuiiis may bo ad Jidcn uti-'iu^que m//>, as Bractoii .saith. Tliis re.s(jhition is supposed, and said, to be decisive of the case now in (piestion, like other decided cases; but this resolve was not the point before the court, which was that of one Colvil, or Calvin, as he is called, Avho had been born in Scotland, after the accession of King James to the throne of England, and brought an actio. i lor tlie recovery of a house and tenement in London: it was ph'a(k([ in l)ar of his action, that he was a Scots- man who was l)orn out of the allegiance ef the King, and when the court decided, that being born after the accession of the King, Calvin was a subject, and not an nlieii. tiic ca-ic wa-i decided in his favor, and of course tiie resolutitiii of ilie Judges on a sui)posed contingenc}', as beforemeutioned. was a mere extra-judicial opinion, which is no authority at all, whatever there may be in tlie arunniient. Let u> MOW ;ittciii] to the Lord chancellor Egerton, when giving his judgment in this very cft«e of Calvin : •• U hcicfoiT of the many and divers distinctions, divi- sion-, and subdivisions, that have ber ii made in this case, I will >a^\ no more, but coii/iiMuin e^/i/!ii(ijni(/ in piil- r6rcvi fectiimc /, ami will conclude will; bisiiopJuel.a man may w.iinler and mi>s lii> way in the mists of distinc- tions. * A^ the kilii:', nor his lieart, cannot be di\ i.led, for ho is one entire King over all \\\< sulijects, jn wlii(di .sn( null loffii;.^ : 4. PrrmaniM crmiiniia, d- illc'^.t. Divide :i man's heart, and you lose Ijoth parts of It and nmke no heart at all, so he that is not an en- fre sub.icct, but half-taced, i.s no «ul)ject at all." Apply Ous solid sense to the condition of the American citizens, afti'r their ulle.^'ianc^• was renounced hy the kin^''s aeknowledjjrment of the soverei-rnty «)f the United States, and the subjeetlon of their citizens was also dis- owned by Mie kind's solenni act, under a constitutional tru-^t ; yes, say some, the United States are sovereign ami independent, the American citizens owe no allegi- ''"' '■ ^nl.jc-;tion, yet do they claim their birthrights. The proper answer to such pretensions is, ;,ou have lo.st your i)irthrl iits by yoiu- own acts, and tiie operation of law upon your several acts; (,l, hiinld bono longer subjects liut aliens ; for iiMuakiuu; e\eiy treaty the king, as trustee for the nation, biiid-< the nation by his diplomatic acts, and l(X nil jkIkI f runt I'd. Who sees not, t hit the bird ebaii-ellt.r. in wb.at be paid abrn-e, glance.! at tiie e\tra-ju(b t > be done )ut ov(>rei!.riitv of Kn'dand w tre!it\-, the lioniaLie i^\' tli !is renounced b\- that •ottish kini dctermini'd and tl and people was icy oeeaine aliens, t and theicj such ore no '!"';d or sell can b(> shewn in auv record nnd the (r.Mly of N. to I'lii^laiid, as I rtli inipton, a~ Scutl.iii'l nth lien er \vas now alien John lo.s! the N already s||,.\\ ,, ; v;,, aftci- Kin.r irman pro^ inces, the two w'uU their people, became aliens to earh otl bui'i already shown, and as Bracton tells iNinudoni«, icr, as hath Tl lose two ,^ • Riloy's riacita, 15.', 107. t Molluy, 375. G86 OPINIONS OF EMINENT LAWYERS. ^reat prorciKMils I'ldiii well voucIumI liiston and record clearly ])]\n\' that a natural subject. In- birthiiiilit, may becoiiK- alitMi b\ such matter, c.r /:o.'<( f,fi fo. and tliu.'i d'l; li Sir Kdward Cuke fail in hi.s ar-umcnt. Tlieu, a.s to the general resululion ol' the juducs, not ui)on the case referred to them, but upon a case which niijiht by possibility happen, in the jiroi^'css of time and chance: A\ hat i- it biii .1 wu'vr /ufitio priitci/iii, bcm;in' lundauicntal piinciple ef the fc:u/i/' law, ■which i-; (|'i lied byCraii:-, the profmnid i'eudist, iiini.sd idtan iliio:inn (Inm ninnii Iiodi > rn'iii-s' i-s\i' no/i j>ofslj' How dees it con-i-t with the law ol" naturt', us (piutcd by Kur Sa\ nr, n ) man can s(m\(' two masters, for he willhate tlienn^and Iom- llie other.' How di)es it quadiale with the jreneral law, as to alieiia'/e of the European nation^ .' D.th it not t"ar up by the roots the ehiefgroiniil ; of ail iho-e l.iw>, in rt'speet to alien- age .' Doth it n-t pretend to out-aruue the liistoiical facts whii'li iiive been (pinted as to the loss of the l']n- glish iliminion, in Scotland, and in France ! Ma-iii do it, (jiii pnit/, lit )• h>, and in order to illnstiatc his subject, was apt, l)e?«idc'.s such authorities as were strict- ly applicable, to cito otlicr oases .uiiii h wei{> not appiic- ablo to the particular question under his consiticration." OP THE LAWS OP XaTION! cs: After nil those consideration*, o.ui it l,e d^Militofl ^vith- in Westininster-liall or without, uht-tl giinl theni.seives as at all hound h Mansfield, in deli Jn the case of the kii takes of very _aid I lis e Js mistaken in ^i.Nii.ir, li'iierallv ick was not ■rovcrned l.y the 1 criminal matters th; iws o 1" !•: O'l i-; uiidouhtcdly lerwise- and, his Lordship a.Med, (he Lord Ciilef otl .fiisti<-e Hah' iselearlv iiilstak wick sen ds memhcrs to t ken m sa\iiii:-. -(hat ]}er- charter ;'' for it is l.v II' paihaniviif of Iv,._rl Mid l)v tiiem thither. wri( of siMinii'iis l|,;,( fli,,v ^^.^j w 111 cnnseipuMU'e (if thcii hci,,- a hjjon-h. e mi'v thus jjerceivc lha( t greatest lawyers cannot alwa\s h,- ;,ual. 10 \ i^ilanee of excn the Ke ; a of nn 11" miniis n. according to .lohnson" stantlv atleutivc 1 filial k, car.iKt he con- I exanesceiil at(,in.. (liat lie (old l)v cnliinies to (he kiiuv an seems to ha\ ■III ■•ippoal \ir> from the il cnuncli r unmj'ntator Matth '■ iHTfiucd this form of w-.rds from Sir lew JIah" s ili-1,,1 \ of (i„>( names and hi':h ant "nilin.il l.;i\\ ; 1)1 It ^reai i'\ of lanu-iiaLic and of 1 i-'iily niniKii jii>tii;\ >u(di in ;ccura- i\v 'I'l ic appeal III liis couiicih Mr M ittiiew Hale IkkI lid tl tile I (inali/.a(ion can oiih he \>\ wi>c. t Nat lira li/at l\inir lai iia- iih.iinent, i )d not other ion. saiih Blackstone formed hu( 1».\ act of parliament, copx III :' . I l: a thew Hale ihotiuh without 'I Im' pcr- iiiSir .Mat- iisiiii;- his idl ti.id no' itherwiM ; hut such -.■neial • Cniiltiinit. IJtl, edit. 1, 108. t Vent. K,.p. 4l'.t -'0. Thut pnsitioii of II ,1,. neiisc, but ia not true in a Rmoral scniie. e e\|)ii'ssioi] positions cannot loio, 111 .1 I .nrtinula G88 OPINIONS OP E^^NE^•T LAWYEKS. stand acraiust known facts, as well as juridical polifcy ; and it was ovo; ruled by the court of kin-:;'.s bench in the case of Campbell and Hall, while the policy of consider- ing aliens, conquered in war, and ceded by treaty, as subi'ects, was confirmed as law. The whole observatioiis of Sir Edward Coke, in support or explanation of the hypothetical resolution of the judges l)ef()re-mentioned, may be considered as mere mistakes, and extra-judicial inferences, leading to little information and to mischiev- ous consequences. We all know the fatal eflects of double allegiance during the latter periods of our do- mestic history. "^ "Indeed," saiHi Blackstone, t "the natural-born subject of one prince, to whom he owes al- legiance, may be entangled by subjecting himself a])so- lutely to another: but it is his own act that brings hiir- self into those difficulties of owingservice to two masters • and it is unreasi)nal)]c tli;it by such vohnitarv act of his own, he slinnld be able at pleasure to unloose those bands by which h(> was connected to hisnntural prince.'' But I have done. I have shown, satisfactorilv, I trust, in wbiit manner millions of sulijects may become aliens, by mere act and operation of law, as millions of aliens, Iiy the same operation of l;i\v, may become sul> jects. Fchi-'inrij. 1, 1811. (;. (j. (1.) 'J'he opinion nf Sir Lhv/,l Koii/on, in 1TS.3, o/? t'le ijia-itioii, ic/ut/ur the (jtOih iuipninl t'r<'m tlf I'nit il Stittea musit pay nlim r/v.' V.v, and arc ^iihjtd tj the regu- liUijH'i of the ats ')/' luivitjalion. • See Foster's Crowu Law; 184, >to. f Comment. 1, 370. OF THE LAW OF NATIONS. 689 Case for the opinion of Mr. Kenyon, states, stat. 12 Ch. II. ch. 18 sec. 6. 8, 9. (^,nrre.~The United States of A morica, havinir now iintations become independent of this reahn, -nd their pi and territories in America not now deemed as to his Ma.jesty l)el lieople thereof onguig, are not the <,^oods i- -ported hv the ered as /ure 2.--Are sucfi goods hel.l to be .•ibsolutely pro- liibited to 1 (1 't' imp iti'd, under the pain ol" forfeiture. 1 le said Oil sr.'linn of ands, if this . cct ly law .' For ;is ihi- case now ion is to \es, witi to any onicM-s of coinicil llic tra'lc ai}il .ouiiiicrce of Noiili Ai art ol' llh> la-( low liat ma\- c i,.:(, loiii iiin reuMi'd le ii'h.tive t( ifnca uudi^r lie s'^y/. ;;'». its: M'^siou ,,| parliaiufiil 'Jil (leo. 111. ch. 20 i tiiiiik that the \ nv I'ouvtriii'tiuii of the act IIUHtaUCC-: II as cir- ow staufl. is. that li' loii (I I'liitcd States. I K' pldllllic of (lie nay lie iiiiportod into this count the plac' of their growth, iiji u j)aya!)le by lbreign<'r--. ai;i.s heirs, and successors, relinquished all claims to the government, pro])riety, and territorial rights of the same, a register could be legally granted to any vessel belonging to tht subjects of the said States, because such vessel could not be said to be- long to any colony or plantation to his Majesty belong- ing, or in his possession, or to be wliolly owned by the people of the said colonies or plantations, or an_y of tiicm, as required by statute 7 and 8 William III. cli. 22 ; nor could it, I think, be truly sworn, that no foreigner had any part, share, or interest in the said vessel, as subjects of the United States must, I conceive, Ije considered as foreigners, within the intent and meaning of the .said statute of King William, frona the time that liis Majesty relinquished his claim to the government of the said states. I think that vcs.sels which were built in any of the British colonies of America before the conunence- of the late war there, and wliicli are /'oim fuli the i)rop- erty of British subjects, are without (loul)t ((ualified to obtain registers; but I do not see how sucli vessels its were purcha.sed by British subjects in aii\ of the states which were declared independent li\ the late trenty, • I was assured by tbo hitc Sir. riiomiis HDinu', tin- rliriirninn o!' tlii? board of customs, tbat tbe Attorney iiml Snlidtor (Miicral IkmI (niicunod with Sir William Wynne. OF THE LAW OP NATIONS. 691 since the beginning of the year 1776, can be legally reg- i.stereiUs IJiiti.sh ships; a.«, from the beginning of iI>q year 1770 to the conclusion of the war, all trade a..(l in- tercourse with the revolted colonies was prohibited ay tlie loth George the Third, ch. 5; and consequently the purchase of a ship in any of those colonies during that porio.l by a Bntl.h subjec' ast, I conceive, be deemea il.egal and void; and a si. , built in any of the said states since the ratification of t'-e treaty nu.st, I appre- hend, for the reasons before given, be deemed a foreign- budt ship. Secondly, I think it is advisable for the of- ficers of the customs lo seize and prosecute vessels, the property of subjccl. ol the United States of America, or which were built and purchased by British subjects in any of tli.- -;,i,! states since the beginning of the year 1770, though ivuistcrs have been granted for them, if they are found trading to. or from, or in, any British' i.s- l'".d.,r plantMti,.n,or to any part of this kingdom, or oth- er his M;ijes(y's dominions. N.B. A v-ss,.] huilt in the American states during the rebellion, and before the independence, being sworn to be the property of his Majesty's sub;..cts residing in Ire- Innd. the nilir ms .,f Indand have lately granted her a register; but i,p.,n lier arrival in England, on a vovago IVnni the IJriti-l, West Indies with good... the pro'duce thcreuf. si,,, was seize! 1,..,.,.. and is claime.l in the ex- '■'"■'i"'i'; ••"id an ap|,!ieation fn,- il„. delivery is now de- |"'i!'liug before (h,. I,, ids (if the treasiu-v. W. Wynne. ("..) 7/i>i o>>i„!nn nf th" Altontnr'Uncral Anhu, l,i li>>S, nil fJi, Anil rii'i ,1 timJc, Abnut tiiree nmntlis a-na brig cleared out of the port 692 OPINIONS OF EMINENT LAWYERS. I- 1 I a • ■S of Kiiigsiou, in ballast, for Hispaniola, from thence to proceed to New York : .she accordingly proceeded to Hispaniola, and as she was designed for New Yoik, the supercargo on board her ordered the cai)Uiin to stop a£ Tnrk's Island and take in some salt, thiidving it was al- . lowable, as many vessels had done, and are still doiii^ the same. She accordingly proceeded to New York •with the salt on board as ballast, where she landed it, and took in a cargo of flour for Turk's Island, and hav- ing landed it there, proceeded fo Cape Francois, where she took in mill tin'bers, Hnd arrived at the jwrt of Kingstc on Wednesday the 2Sth instant. The ollicers of the customs having had intimation of the above circumstances, sei/od her, irlleging that Ihe above vessel had committed a breach of the navigation- act. Your opinion is therelbre re([uested on the [)art of the owners, whether or not, ii-.im the above circumstan- ces, the said vessel is forfeited and liable to seizure ? I think this a h.a-d cas-e upon the owners; but I am of opinion, no trade can be conducted between the United States of America and the West India Islands, anM)ugst which the IJahania Islands are included, except as to such articles as are expressly nxMiti-jnci! in the Kin oil the qn-xfton, '• ,i'Jirth< r iiilml-ltitnts' of the I iiiUd Slufcs, Imh-h III. re liijore ihi: iiu/i p()i(/' iivi' are, on <.ojnin thi^) kiiiiji/oDi, t't he »tri».sq„e /rv//.v,- (TKep. •11. I..). -r, to apply the words to the present 'ca.se, our .////o' »uf,is-. or American born before the sei-aration, may be ii'l flJnn rrr,;.., and also a citizen of the United States*. Su.'b a. plain and explicit authority as this seems to Diake if unne-es,.ary to search for an'v other; however -.b,ivcliay be ce.lcd by the kin- and this I'.'iii- done without the consent .,f the iidiabitants. (here \v caii such a people be afterwards consid- ered as British suhj(!cts ! 2dly. It is objected that there are certain statutes and public acts which stand in the way of the above mentioned common law principle taking effect. 3dly. It is even objecttxl by some, that no principle of the conunon law can sujiport so unwarrantiible an an- omaly as that the same pei-sons should belong to two states, and that admitting them to levy war against the king in the character of American subjects, without be- ing deemed tiaitors, and then allowing them to come in- to his kingdom in the character of British suljects, is an inconsistency which they think cannot be counten- anced bv the law of England. To the first of these (jl)jections it may I)e answered, that the i)cace which put an end to the American war ought to be considered as putting an end to all the ecu- sequences tliat might be imputed to the Americans by reason of their rclu'liidn ; and, indeed, there is in the delhiitive treaty, article G, an evpress provision, that no person should, nu account of the war. suffer anv future loss or damage, either iii ids per.-?■ 4 OOfl OriMONS OI' EMINENT T.AWVEns. It is expressly laid down, "Quiil ahjiinifrr-ijimm, ,imit,'lt raunum, ml iion ir^on ; (niniitit pnti iam. s.il iion ptitirm jhi'i'K, : i;.r iDtwithstaiiding the itl»jiirat ion, lio owctli the kmu; his aiU -i'Micc, and he remain'^tli \silliin tlie lvin-"s protection: (or the kinu' may jtardon and restore liini to hiseomitry a.i^ain. Allegiance is a le in arnis (lrii,aiidin,-r to he released liuin their adeoiaiMe. it shoid I he recoil.., .fed tiiat tiic inii- .i^ua.uc ill this coinitry diiriiiL; the wjiolc oltlie Aiiicriciii wai wa^diU'cn.nt: it was said, '■ the liiinkin- part. I hos,. wlh, liad propel fv and character." and son,.. sai(L ■■ tli,. niajordv ,.f tl,,. propl,-." \v,.re a-ain^t the vio|,.nt inr.aMires wiiicji w.t, .hivcii on ly an ■m-\\\\' iniiri'il .• "'' •'i.^itators. Is it til,.,, al all reaM.iiahIc to inl-r iipMU those prrson.s who Were lii,.|idl\- to ihi^ coinitrv. the consecpieiK'e-; , f Miel, re-i^fance and reh.-llioii ' !ii.l,.,,l fiiere i> nothiiiL-' so nnju-t in the law o|' I'aiuhoid. , he !:nv does iiot c aisidei- the i ■ ■;.•< siihieel.. in ;, ,,, ,.,.,<. ,,,,- der the iianK- ..filie ] ..o^ile. in aii\ imiiili.'r im re or h'taii.|- upon it« own gn.nnd au.l < ii-um^t.mre. ji i-, tii,.|,rni.. ut- lerlv inconsistent wi''- the law, to im|nih. to the .\inpr- icans any (lisCraiichi-einent a.' a people ii there in nny snc!\ oxtingni^liiiieiit of ri-ht^-. it niiivt he in he loiiiiii ill a millioii. Secondly, n.s to the statutes and nnh'ie nets win. h ar.. supposed tostiMid in the ^\ay of the ah ..,■ iiientH.ncd OF THE r,AW OF X ATIOXS. 697 principle of common law: the principal statute which, I boliovo,is leiiod upon, is statute 22 Geo. III. c. 4G. This i^ a parlianu-ntary authority, enablincr his Majesty to maive peace with America; an authority which had be- come nec'ssary. because tlie parliament had passed some acts of pn.hibition ai.d pon.V.ty which might stand in the wa.v orpca3 'Ivo. TTT. o. 2o. i^ I > i .; I' i 608 OPINIONS OF EMINENT LAWYERS. Sucli .ire the provisions of the .act for inakinj; peace with America, which is supposed to ^ive authority to the kiii.o- to ttike away the rights of JJritish-horn sub- jects from the inhal)itants of the United Stati-s, and make them ahens. I can only ask those who aUege this act, to shew us hy what wort's, or hy wliat constnu-tiou of words, such power is given to, or \y intimated to reside in the king'/ And with such an appeal 1 dismiss this statute. The next document that occurs, in course of time, is the defniitive treaty made in SeptemScr, 178:5, in pur- suance of such parliamentary authority. In the Hrst article of this treaty, the king '■ acknowledges the Uni- ted States (naming the several colonies) to he free, .sov- ereign, and independent states; and for himself, his heirs, and sut>cessors, relin(iuishes all claims to the gov- ernment, pro[)riety. and territorial rights of the same, and every part thereof'' This leading and genend pro- vision being made, there follow in the treaty .some few subsidiary stipulations, all tending to give effect to the above rcliniou in the treaty for doing that which I liave not yei di>cover(>i| the K ing w.i- authori-rd b\ the act to do.' It iipi.e.ars fr,.in rea.lmg the treat;. . llialthe king has not, -/, jurfo dnne that which he was n^t enabird bv (he act, nor was otherwise autliui iM'd, ,/, /,//•,, |,.,|o, lie ha- not taken awa\ the riLdits of Iblt ish-l.ni ii siij,- jecta residing in lb.' Iinled States, nur Ji;,s he n'u.Mnire,! Ill ',allei:i,inee of his natural-born snbjeetfl residing there; h.' has acknow i.MJiTii the eofaiies ii> be free and indo- |iendent,and r. lincpiislud all sovereignty over their ter- OF THE LAW OF NATIONS. 699 ritory; in doinrr so, ho has dopartod with some of his (nvn royal prero^rative, and has circuinscrihod the claims hr L.'toro had on tho allo<,naiice of his nntural-lmrn sub- jects resi.iin- thoiv. This was his to give, aiid ho has ,^iven It, l.ut tho ri-hts of British suhjocts tho kin^^ had no power to take awny ; nor was it a time for talking, hnta ti-.no for trivin- and conceding; the Americans meant to add t„ what they already enjoyed. They would have felt it an injury, if it had he-n ])n.posed to them no longer to he deen.e.l iiritish-born subjects; and re<.>llecting, as we must, the feeling and speculati.ms in this country, looking forward, as many ,iid, to the colo- nists .,uarrclling amongst themselves and coming back, all "I- some of them, to their old connection with us, we "li.y b.- sue no one in this kingdom wonl.l have ven- fiire.i , propose that they .sboul.l be stripped of tiie ••haracter of British subjects to which th.-y were born, ;"•'' '"' 'vudered aliens mi.ler circumstanccs'which Would iii-ii'-Mte on o,n- part a dispo.siti.m t<. perpetual estrauije- ment ami entuitv. So far from this. 1 think, ther> is even in the treat v n. expn-ss saving ..f the rights of a l^ritish-born sub- •!'■'■'• """""- """'•• '-i-'l't^ and claims. I,, article (I it i.s pnuided, •■(bat no p<,s,,n shall on that a.vount, (mean- in- the pn>c..,|ii,..- w.ir) suUer any future 1o-h or damage, '•i'!"'- ill |H'i>'m. l,b..,ty.orpr.,p..,(y,-' J.' ,.,„ Am.'ricnu' ''" -^ ('""iskiu-domaud i~ (reate.l as an ,ili..n uu.l,.r the ali.-n act, b,. a-madlv sulb-r- in hi-^ person au.i '''"■'■'> •""' ^"'•'' -'dV-iing nuHt be ou account of the ":i'. wb.,b tho>,. ou.uiit to allow who make the lirst of !l.e above obj,M-tious he -undy 1 can iln.l nothing to the eflect siipposucl, and 1 must put the like interrogation as before ; jet with still less expeetation of an answer, heeause, in' this treaty, we have something more than negative eviden.-e we hive here express testimony, that the rifehtsof British-horn suhjeets were intended to he con- tinued to the Ainerieans hy the lirst treaty, and that it was intended hy the eoiumenial treaty to give them a longer continuanee to their posterity. By the t)th artiele it appears that the American citizens then held lands in the domini')ns of ..is Majesty; l.nt they nnnt ho Briti.sh-born suhjeets to hold laiids, and not aliens. It appears, therefore, that his Majesty, in Novemher. 17!)}, eleven years after the treaty of peace, re.-og„ized tiie citizens of the Tnited States as British-h;.rn sui)ject^.- I lay this stress upon the declaration (.f the fict, heeause I cannot suppose u puhlic and M;h mn instrument, as this treaty is, would speak of jjuids lu-ing h.-lden in anv other sense than that of hein^ lawfully holdeii. Theframersof the treaty eertainiy undeiNtood it in that sense, heeause the |ao\i>inn tiiey liiiend.'d to make was to fortily the lilies to tl,e-e lan.is in future times, when eertainiy the title to tluui would l„.,'om, n<.t law- ful. They foresaw that although the , .vsen! |„.s.,.s,.„s were British-horn suhjeets, I heii- de>r,ndeiits, Im!iii in (1,,. Umted States, oul of the king's allegiance, would h,; aliens.* It was acc,udingl\ sti|.uia'e.l, • that iieitiier they nor their heirs or as.sigus >hall.so tar a, nnv respect • TIkj might for their sons, awl pr.-jndRotis, hnvo tlio boncfit of 8t..t. 7 Ann. f. ,v ..tat. i (Jeo. 11. c. Jl. iui.J stat. |;l (Jco. IL c. 21. lutl'or atcr UcsucnUcuU, tliojr uecUcU a ucw jiruvision. OP THE LAW OK NATIONS. roi the said lands, and tl.o legal remedies incident thereto be regarded as aliens." If it nhuuld be objected, that the I)tov,,;,o,i here speaks as well of the present p,.sse.ssor as the heirs, the answer is, that it would not have been so v/ell worded if the present possessor had not been named • and .i-he had not been named as well as the heirs, it might have been construed into an implication that he was to be excluded from the pn^tection intended for the heirs only. Another more probable rea.son Ibr this stipulation was to bind the two nutions, not to make anv disqualifying law, that by rendering the others aliens, would .Usable them Irom holding lands. This future po.ssibilitv, with- out any doubt about the then present state of the law, iiught be sullicient reason for such a cautionary provis' Whatever oI)servation may he ' idulged on this part of tile arucle, (he averment in the beginning of it re- mains unnnecled; .mi.I .his averment, of Americans be- ing Bntish-born subjects, is ngain published, ratified, and confirmed l)y parliament, in stat. 37 Geo. III. c. 97.' sect. 21, 'lo. whicli was made for carrving into execu^ tion the treaty. Tliis article of the treatv is there re- cited at h"ngth,aiid th.. two clauses, .-vet. 21. and 25. purport ■<) cany it into execution. If their is any tbiiig in n. -.(atute to control the ef- fect of Wwr. muoii law position ..,, uftm allu.h-d to, I think it shouhl he iu th.M> (wo chin.«,.s; yet I have not been able U> discover such ;i meaning, and 1 must leave it to be demonstrated by (hose who have found it out. The clauses Mppenr to me to have something |.atticuiar in th. m; they oni,( the naming of heirs, which was the oiuctmentmost wanted, and they supply this omission Si ^^ i ^"'^IRi; 702 OPINIONS OF EMINENT LAWYERS. by a windiiiir wordiness in tlie proviso, that is not easily evolved. There i< a ul))ects may voluntarily put them^ .selve-; in >s / Some persons are born to such double ciiaraetei : ciiildrcii and grandehildre;', born of Briti-^h |i:irent< in lbiciui, coinitrli's, are British-born sulijects, yet thcM'. no doubt, by the hiws of the res[)ect- ive foreign counMii's an> also deemed natural-l)orn sub- jects till ;•('. 'J'hus far of individuals; fh,. like may happen to a whole conuuunity, whole p,.o|,|r When the king rc- liiKpii-bed In- so\ci-ei-nty o\-er (be liiited Malfv the laud lierai.ie foreign, while (he inlialutants remained all British Hubject.s. When the king s furces took Surinam • Vid. nut pa. G93. OF THE LAW OI NATION; and the other Dutch cuh but the inhabitants still sonal character of al mies, the land 1 continueil fore 703 )ecame British, i":ii'^r.s. Tl ic were born, still remains to tl per- ion with which the Dutch coloniyts acter of British subject, with which the A ni.and the indelible en Ijorn, remained to them after tl foreign. I ar- niericans were leir counti'v was made la) am aware of the difficulties which suci )or under, with those double cl them, Such difhcult stances will allow, and les must be got (hnuio-l 1 persons may anus of allegiance upon I as r'rcum- th( C(»nsi(ierati(ju parties according to their respect Kiiild he had f )r especially with a distinction bet ivc situations; more themselves into such oml and those wl wee n tl lose w ho itrouuht )arrassing situation voluntarily. with regard to the dill lo were horn in it: and i iioie particularly erence between (hat which is tl actof])rivate individuals, and that whicl proceeding, involving a whoh le circumstan 1" opie jections which relat 'H's, it will soon appear that tl I is a national In Wl luhio" such ies(> are all oh- the case, they are crcise and enjoyment of th'> ri-ht.- ut nothing from'the ri-dits fli e more to lacts than to the 1 inconveniences in tju- w;i\ of | i\v of nil e\-- Ir; ill tion. liut de- hand, th ems.jves. On the one iig c:.iniot lecjvo,, upon tj,,. fnll and absolute olx'dl ence of such persons, 1 fealty besides that due to 1 tecause tl ic\ owe anotl ur iiin ai tl c oihci- hand, (lie M'b)ect cannot have full enjoyment of his Hnlish riuht.^ Indeed, it will ho found, he will 1 lights as the king has of his (.hed lave a^ iitti .11, is own ol a Briti lence di subject are if the riirhts exa Iuo^t all ol' them depend Miinons. and that when 1 mined, it will appear lliat at- '>n a nvsideiice in the kinii's do- ll N, as thev e remo\e> inio a foreii'ii c oun- are without e\erci se or I'lication, they • >.>-l .1UV» 11,1V V no apparent existence, fl -M I 1 Ifl' 704 OPINIONS OP EMINENT LAWYERS. M I hav ) heard it asked, if the king was to send his writ to command the attendance of Mr. Jeflerson in thi.s king- dom ?— I agree he \vould not come; bnt that woidd he no test of the law upon the subject; it i.s an inconven^ ience in point of fact. The law, in the execution of it, is liable to many obstructions which prevail, and yet the judgment of law is not deemed thereby invalidated. If the king had sent such a writ to General Washington, at the head of his army, I suppose he would a .t have obeyed it, yet no one would have deemed it a demon- stration that he was not amenable to om- law: Why then shculd a pacific refusal from Mr. Jefferson have in it more of the force of a legnl argument 1 And yd, I think, Mr. Jefferson might decline obedience to such a command, admit himself to be a British subject, and have the law on ids side too. Mr. Jefferson might answer such o call upon him by saying, true it is, I was born a British subject, and 1 my- self have done nothing to put off that character. }k\t your Majesty has, by the treaty of 1783, relinquished nil sovereignty over the United States ; and as your Majesty and all the world know, it w.is thereby intend- ed that your subjects here should form a government of their own ; we have so done, i.ador the faith of your Majesty s grant and covenant; iuid it has happened in the progress of events that 1 am now exercising an of- fice in that government which necessarily requires my presence hc.o. I am bronglit into this situation in Con- sequence of an act of your Majesty, by which it was de- signed that my.self, or some other of your subjects here, should come into such a situation ; being so circum- stanced, I am no hmgcr at liberty to make a choice of my own There is a moral and pcJitical necessitv, that OF THE LAVv OP NATIONS. 706 makes it impossible, at present, to obey the commands of your xMajesty ; I pray your Majesty's forbearance; 1 plead your Majesty's own covenant and good faith: and I rely upon them as a justiiication, or excuse, for my dis- obedience. Surely this would be a good plea in point of law, and Mr. Jefferson might have the beneht of his American citizenship, in perfect compatibility with the claims up^ on him from British allegiance. Such scintilla juris in the king of England, ean, I should think, raise no tlame in any Aineiioun bosom. There are much stronger ca.ses of a similar kind that have never startled any one with their anomaly or in- compatibility. Mr. J. and other American citizens have entei-ed into their olfices, tiieir engagements, and their situations, under the laith of the king and the parlia- ment. But how many British subjects have become cit- izens, burghers, burgomasters, and have taken other of- fices in foreign countries, voluntarily, upon speculations of private interest, and fiom various inducements, all of them of an individual and personal nature. If such per- sons had b6en called upon by the king's writ, they would not have had so good a plea as Mr. J. and yet, probably, none of them would have moved from their station! Was it ever heard that such persons, when returned to this kingdcmi, were deemed to be less of British subjects, because they had lived and risen to public stations in foreign states \ No, certainly, they are considered as having exercised the liberty belonging to all British sub- jects, respecting whom there is no restraint but the con- siderations of prudence whicli are suggested by the oc- casion ; and yet none of these volunteers in foreign ser- vice have so nuicii to say for themselves as an Anrericau X i: If I . Ml 706 OPINIONS OF EMINENT LAWYERS. citizen who chooses to leave the United States and „ spend the remainder of his days in this kingdom. The loc.J allegiance he has acknowledged to a foreign gov- eiii.ic is recognized by the king and parliament : he : ■■- -••. : jr lived wholly out of the view of the sovereign power under which he was born; and the language, law, and manners he has been conversant with during the whole of his residence in the ceded states of America, restore hiin to '\r<, kingdom, and to his original and nat- ural allegiance, unchanged, and quite British. Why should a person of this descriptiem, an American citizen, be the only one rejected and excluded from the rights of a British subject, because he owes a local allegiance in another country 7 There is a parliamentary record, testifying instances of such contumacy. In stat. 14 i: 15 Henry VIII. c. 4. it is recited, that Englishmen living beyond sea, and be- coming subjects to foreign princes and lords, " will obey to none autlun-ity under the great seal of England; but they give themselves over to the protection and defence of those outward princes to whom they lie sworn sub- jects.' It is herein recorded by parliament that Eng- lishmen thus expatriated themselves and refuse! obedi- ence to the kings writ; and yet no declaration or enact- ment was made by parliament on that point of disobedi- ence, so as to disfranchise them, and make tlien\ aliens; but there is by that act imposed on them merely a pen- alty in one particular article, that of importation of goods. Such persons, it seems, had abused their privilege as Englishmen, and had lent their name to cover the goods of persons of the foreign country where they ri'-ided. To put an end to such impohitioris, they were in future to pay alien duties, as the subjects of the country where they resided. OF THE LAW OF NATION'S. roi Compare these recusant absentees alluded to in the statute, with the American now in question. The torm- er voluntarily leave the kingdom, make themselves sub- jects of a ioreign state, refuse obedience to the king's writ, abuse their privilege of natural-born subjects lo de- fraud the revenue. The latter i.s })orn under the king's allegiance, in a country which the king has since ceded and made a foreign land. It does not appear, this par- ticular person had any concern in the public aftairs of the country, till it was so settled by his Majesty's sol- emn covenant and grant. He chooses in the latter part of his life " to go home,' (for such is the phrase in the United States to the present momenl,) and end hisdovs here. No act of recusancy or contumacy is imputed to hiui. Now compare the consequences in the two cases: the former, though solemnly noticed and censured by parlia- ment, is not marked by any penalty of disfranchisement, thougli thus iilienated from his native country, but is merely mulct in the payment of alien duties; the latter is toUl he is an alien and has lost his right of a natural- born suliject. The fiu-ther we go, the le we find of precedent and principle .'gainst such a sei.ience of disfranchisement. 'Ihe.se iire the answers which, I think, may be made tt) the al);ive three objections , These answers seem to me sullicicut, and nothing further need be d tc a foreign service : the prosecution was commenced, the indictment found, I)iit tlie attoiney-g(>neral entered a noli prosequi upon the party paving the costs. Among tlie opinions of lawyers. I nnist menti 'i what .1 received from Mr. , to whom I .s^nt a - 'ate- ment of the ca.se, with the view of learning wliethcr any alteration had taken place in the opinions of lawyers of late days : I knew I should have from him the current OP THE LAW OF NATIONS. 709 opinion rr Westminster-hall ; he at once wrote with pen- cil on the hack of the paper, that such persons are Brit- ish subjp-^t ,med to answer it as if it was as known anu as -^(abh^ied as that ihe eldest son is the heir in fee simp' . I rr.,,. i,v at the Custom-house, where, . was told, I a.frh' nossibiy find notes of some decisions at ni- ^'iprau ■ :^e Exchequer, which conveyed the chief baron s oi>inion, that a domiciliation in America took away the British character from a seaman employed in navigating a British ship. The solicitor said he knew of no such cases nor of such opinion ; on the contrary he said, It was the usage of the Custom-l,ouse to consii^ or the ^rnfe nati, in America as British-born subjects and hey wore registered as owners of British ships: he in- fonnod nic also of the above proseccutiou for enticin. British scamoir and he gave me copies of the paper. ° These authorities from the opinions of lawvers and he practice of a public office, cannot be closed better than by a„ authority superior to all of them ; I „,can what has been already mentioned, the 9th article of the treaty of commerce, and sect. 24. and 2-3 of stat 37 Geo^ni. c. 97 where there is a solemn declaration by he king and the parliament, that American citizens did hen hold lands; which they could not lawfulh- do -m loss they were deemed British natural-born ., bjec^i ^ Aher such authorities, there does not .seem to me any need to add a word more. iMc. 9, 1808. ,.. . Brccmher 35, 1808 .Since writing the above, I have been told that the .^^hioct of ant. nafl is no part, of the present question and what the objectors mean to urge is as follows : First' n •' 710 OPIMONS CK EMINENT LAWYERS. |l-;- . Tliiit tlio Ainciiciuis, at tlu; time of makiiij!; >^; of such an act, and in the wordirir of it : — Peace and 1 -uce — was not the langiincre to hold to rebels : nor did th ' kini^ need the autiioritv of an act of parl'.ameid to |>roceed with traitors: the net has no dhject. if the Americans are not achintteil to l)e foreigners in this t^i'.ii^action, Secondly, That after the peace maih-, it ^tiU remained for Americans, if thev eho-e. to .idheri' to the |{riti>h character; and it is not meant tn dcii;-. tiiat j>riiiiit ludi, the Americans are to he deemed IJriti^h siilijects. Hut tiio.-e viio diiiiiciliated thcm-ehcs in tiie I'luted. Strdt'-, r howed t!iereli\- a de- lernunatinn to herome American citi/en-; and attci'siich idi;ii(H-. they cease to lie Briiisli s^hjeids, and caniml re- siMue thai character. Il' 1 have i:()| >tated the al)o\'e |ii.iuts ipiite eoirectl\'. nor with all llie advaiitmre tli.it helnm^s to them. I Impe I .-hall li • p;u(lnned In- lliMse \v!io made them, and who rely npim theui: they were cnmmimieati'd to me in ;i, raitid ennvei-atinii nnl\ ; fur nut hiii: on thai >-ide of tho (luestion has hecu lait into wrilin;;: I have done mv host to retain wliit I he.ud and i > >i;iie it fair!'- and fidl.v. 1 am tiitallx al a los-i *o comprehend. :it w !>at period ol the war. or li\ wliat inodJiention of ciu i'\ inix it on eitiiei" on one side oi' the oilM'r. or l'\ what events oi' oireumstaiiees, that whieli wi • onee rel'eilioii ee.i~i'(| to be so, iind the traitors heeanie changed into aliens wng- iiijj legitimate foreign war. .\'< to the words peace and truce, 1 do nut understand wh\ they are not um appliciv- blc tu war coupled with rubuUiuu, us tu war not cuupled OF THE r,AW OF NATION! with it. F(,rw III and I do not nr IS still war, wlmt sec wh\- the war ()t'rel)c'i ovc-r may pive rise to if gvatcnv.^ war. and therefore needin- that attends all (•\p AV ther. ars. Surelv, in the t wore treaties and truces and is not legitimate, vy consideration iiiie of Chaiics I. a jieace for a short t poacc too; there was Lnrd-('h inie I think in 101.-,, and trail anoellor Clarendon entitled tl .^et, the tactions, a '■lIis(,„-voftlieIN.l)elli n.iirative of these lias ever dniil.ted. I),. Ju- 1 on and 111) man was t' war levied af,'aiMst Charles I althdugh it was attended witj iiiand names, and ulthoii.iili inmiv a agreed iw-nian, or layman, tliat the 'casdii and n 'hell ion: 1 success, .'ind could COlll- \\.\v in applying to it the -lualilicd appcli inoii->t us have !f)iifr it ion ofciiil and and t As to the neces>ity ,.r making sudi living thcivhy |>f.wcr to Ww V a peace I' .■I'lcjin- w emies, and ceased to l.e trait curious that a dilicHiit li'M'oMie alien CIl- ors and rel l.v t reason "•Is; it i.s very ic m;ikers of tl If act ; that lliiC paiiianK'ntjuy dch.ite.. of the I given, .seems to me to sn|.ersede tl '"'■ making it was uiven ii'ason i.-< recoi,|,.,| ,,, (|,q le I iiig any new one like tj and tile reason so ioccs,sitjof invent- H' |)!e-eii The IhII was called '•the Truce P.IH - and into the house of va~ hrou'dit cominoiis, on Felirn It dn, tlie attorney -general \\allj il hecame a .Mili|(.(t of d(.|,ai ii'ilion ,111(1 paili.iiiient were iii'':i-nre lendiiiii' to lir tr.\ _S. s ml ,1 IV' I7SL'. 1 ppfar that <• 111 .iin its sta g,. the lent I M'"" |>(-'aee, aiin. 712. OPINIONS OF EMINENT LAWYERS. I! • When it had been carried into execution, and the pro- visional articles with America, togetliei" with the other preliminary treaties, came to be ccnisidered in parlia- ment, in Kebrnary 1783, this act was In-ought in iiues- tion, and tlaie war, expressed ^reat ililVerence of opinion as to its original desiiiii, the construction to be [)nt on it, and the ell'ect it ])roduccd. In the lirst debate it was o1)ji-ctcd to the provisional articles, that the kin^: has no riuht, by his prcroijative, nor by the act ol' last sessuin, viz: Stat. *_'2 (Jeo. lil.c. 4(1, to alic'i.ib ti'rritories luit acipiircd by coiKjuest dui-ini^ Mie war. The ;;enlli'nicii ol" the law bein^ called upon l)ythis objector", Mr.Maiis- licdd answered, that, ce; ainly by the act of last se-^-^iou, the kiiin was authorised to alienate for ever lb.' iudc- pendence of .VuK'rica. — [Debrell's Debates, vol, ix. liSU. | On a sul>.-e([iieut day, the same u-eiitleiuaii [DebiiliV Ueliate-:, \dl. i\. .", I'J I au'ain raisi'd a, (|uestiou upon tliis act. it a|ipearcd to him that no pucdi power was ;.^iven to the kinir by the act ; that any ])ower to alien;. te pait ot" his dominions, or alidicate the sovert'i^utv of tlieju, >honld lie conveyed in e\])ress words, and not U'tt toiin- pliealionand con-truet ion. 'I'his bronchi up .Miv Wal- lace who was the fraiuer and mover of i ln' bdl, .lud u ho declared that such power was u;iNcn by the act he s.iid, he knew ol no power in tin- kin<^ to abdicate pait of his povcrciirnty, or dec'are any number of his ^ubieet•^ free iVoni obetlience to the laws in being. A-^ soon, there- fore, as the resolution lor peace hacco i^'l antimritv tn tl„. |. I'll ■. who ■peilcb-ncr oj' thr A I was obvious, tile Ai "I" persons declared King I o reeog- '"■"'■■"i~: adding that it '"•'■"■•"IS standin- in lb-' pred leainent to tin act, it was n '•uutious inaiiiier 'e rel.cls at I leces.saiy t i w in uhi(di il le lime ol' passing Hill It Ml I le L'CiK.'ral and '"' "I"'" the .statute hoiiL'h tl the l.ll. "•Hltorney-,,.ne,al K.nv o,. (bus supported attoincy-general Wall I lid eU'eet of his aame liiiic di'iiic I the II iif'ded am >i') 1 A lik. dim i'liwer iMo declare ■e .joined in opinion ■ites, p. 314, law 1 iiiii- Tcnce of opinion the discutiHiuna was (li.seovcrod nmom,Mli'^ of tl lie provisional arlieU I7f Ha nuMMded Mr. WalUco.ou iLc change of Uio ministry, in M»rcb Ul 714 OPINIONS OF EMINENT LAWV'EkS. \ ' and the preliminary treaties. It was inaintuined by Lord Lougliboi-oiigh, that tlie king liad no autliurity, without parliament, to cede any part of the dominions of the crown, in the pot^session of subjects under the al- legiance and at the peace of the king; and this, his Lirdshij) said, could l>e proved by the recordn of paiHa- inent. This doctrine was treated by Lnid Thurlow as nnfoundcd, ;ind he strongl}' maintained the (Mmtrary. — [Debates, vol. ii. p. 88, 8U.] The dillerence between the two lurds had arisen, not npon the independence of the United Staifs. but upon the ci's-ion of the Floridas to Spaiii; and it was on that account, no doubt. Lord Louiibborough stated his pro[)o- pition witli the word<, under allegiance and at tlie peace of the k'\wx, wliicli was a proper descriplion n'thc Flor- idas; but the same Cduld not be said -o fhll\ nf tiic I'ni- ted States, whiid), though under the allegiance, could )iot bi' so wi'U said to be at the pe, ice of the king. Lord Thurlow. it i-i phiiii, did not admit tliat tliis dillerencc in circumstances made any (lin\'ii.'ui'r in the power of till' p'(Mo'j,ati\(>. It nnist siirei\- be conft;.-<>*ed, that tlils cession ol' the i'"lori(las to Spai . at ih.- wry inonn'ut that the American indeprndince was acknowhdged, makes a great breach in the hypothesis ol' Mr. Wallace, Mr. Lc' and Lord Longhborough, who tiiou^dit stat. 1*2 Gi'o. 111. c. 40, absolutely necessary for cnaliling the king to alienate part of his dominions, Indeed, the pre- cedents are all ai^ainst sucdi a rrstiiction on thr prerog ative; for when lias there b-cn a peacr. thai f .jnie We."., India island has not Ikmmi ceded, not only nicJi ad has been taken during tiie war, but tho.sc of iincient posaes- eion ? Li truth, this is anotln r distinction that has nn BoliJ foundation iii law, but is a nietx' cci ccit. It i.-> well ^in. OF THE LAW Ol" NATIONS. 710 krnwn tliat, ihe laws of navigation attach tipon a l>osses,>~i(ui in Amcrira. or Africa inuaodiatoiv on a hur- roiidor; and tin- tenitiirv is, to all intents and purposes, as nnich the king.s as any ancion; colony or plantation. It i.s tliereroie \vlu)ll\- a.ssiiniptio'i to ijiise the ubovo dis- tinction, and to consider .>^ncli a conquest as loss a part of the dominions of the crown, and less under the pror tc et Ion 1 if Ml iliaiiient. than t'- more ancient [ )os-.i's>i()n3 ]>iit tidxiii;., the iud,i;nient of parliainer.t. (wlii(di linallv appiv.Ncd all tlirsf treaties) for the on this (jni'-.tioii (flaw, we are ol)liy;ed t thc ^upreine autlioii o couchuk' that he kin-r had jM.wer to idinipiish to the kin same thing in both cm^o's] to Ihi.s, and nothing more, namely, that !..■ nuix.-. the Fh.r- idas, and nmke.s New Hampshire, &c. equally foreign do- minions, Kvery oonsequencc th.at follows upon the re- I H 716 OPIXIOXS OF EMIXEXT LAWYERS. f linquishmoii' of ,-ovoiTi--iity, is a; put nmler the same eir- cnm-f,uic(w, at the s.ini<' time. !>y the' same, or ])v asinn"- lar opiM-at ion.eei laiuly for the same purjiose.that of peace. I say, that the cevsiou has the sinuie <'n'ect of makint^ the Floridas, and the united states of New IIainpsiiirL>, &c. &e.'forelvereigu. .uid indepi'udent states; and he rolin(|uishes all claims to ihe government, propriety, and territorial rights of the same : the king here parts with the states, that is, the political mav tl ure o f tl ' i-truction, king, any le cc ox<-rcis(. (Mill ..njuynient, circuniscrihe tl ii'ii 'liil, in point of As t!i(> kinu- 1 as in no easi- of cession mad i-copt' of it I'lHpiishnicnt of allegiance due t( ca.«e of such cession vcntinvd to tal e an a< dual re- ii'd Ins. hut hcloui^cd to tl iin, so has he in no ke away what was le individii AV lio wciv to sulfi'r enouirh in h his suIi|octs; i'lg oonqiellcd tlieuce- 718 OPINIONS OF EMINENT LAWYERS. forward t) live in a fjreign laud, and wli;) niiL!;ht very ■Well l)e indidiri'd with the consolation of retainin.i^ their birtliri;j,'ht of British snlijects ; a ri.^dit which ini,ti-ht lie bron<;ht into enjovnient and exeri'ise, wlienever they plmnld ii!Z:iin cvnne to live npon British gronnd. AVilli nil tlio instances of cessi nis which arc examples to the CDiilrary.I cannot nndorstand how any one slionld entertain the iin;ii;inatioii of their ellect in dissolving personal alleiiiance. accompanied too with such an incon- seiinont rc>nlt.us that the British suhject so released he-, comes theri'liy iin alien. To return to tlie (iljjectic/n which T was to con-ider. in reirard to tlie desiuii anil eUV'ct of stat. 22 Geo. 111. c. ■[('>.: it apjiears. t'rnni what I have hel'ore detailed out of tlie ParlianuMit iry Oehates. ttiat the statute was deemed iiece"ni\. i!\ ordi'i' to satisfy the scruples of some per- sons, wlio tliMui:lit that the kini;- had not at common law- power t) alienate any part of his doniinions: fuither, that it was nere<< try tin' kinu" shonlil iia\(' ]iower to sus- pend th. (ipiTatii'ii (if certain acts of ]i;ii-lianieiH, wliitdi it wasfnrc-cen niinlit stand in the way of inakinu' peace. It was afterwards contended that the statu!" had also th(> special en'cct of authorising- the kin,^' to ,urant inde- penden ■(' to the c(ilonie>; hi-cansi', as it empowered him to make peace or truce. an\ law. statute, matter, or tliin;^ t ) tile contiarN not u it listandinu.', it of cour.se, say those ohjei lors. riup iwei'cd liim to i;rant iudcpcudence. or in- d 'cd a;!\ tliiiii:' that -liouM lie deemed necessary towani ■; makiir.;- such ]ieacc lU' (rnee; meanimi hysnch independ- ence di-lianchisenient, and convertinir tlie Americans into aliens, AHcr sn(di exi)licit discovery as was Itcfore made of the nature and design of the act, how are wc to acqui- OF THE LAW OF i\ATION! 719 c?ce in the construction tl tion? Whivt re: niittcd to be alien mate war, and not reliel.s? HIS put upon it in the oi)jec- ason i,s tlicre for sajing that tlie act has uiericans were ad- foreigner.";, in a 'ag(), and (ithcr p oreign ])owei': aces that ^\ a< it e\er oblc-t- 10 tries, that 111 subji-cts inhabitiii',:' tl lose c >uu- lia\iug doinicdiated t ii-m^cives then ere considered as ali» thev ■us in the 1 A\'here should men is? And did it ev >rii.i>li diiniiuions 1 ■HMloniieiliated, but where er enter into the mind of tli Ills ministers, that, u[)on a cession of lenit i>h-b()rn subjects inhaliiting there si hazard to their woi-ldly all'air: their family? There ai lu'ir home king or "IV, the I5rit- louid migrate, at all and (li( prospi'iitv of ■e no surb miiiiati iiU' lev ( \-er lieen ( expectations of them ; nor have tl necessary for keeping alive the birtlii'i-bt subject. Why then should it le necessarv. no siicii :ccmc(.l lor tiint States? a Ihit the 1 isli irst in the case of the inhabitants of the rm'ted ' I 720 OPINIONS OF EMINENT LAWYERS. I think it erroneous in principle, because it makes that depend on the option and capriciousness of the por- f'oMi the country where they reside ; so, th. ceded conn- try becoming fbreign, tliey deem the inhabitants lorei-n too. Such is the nde in prize causes, where hostilitv1.«^ to be regarde.1, which must ever be a national, not a personal consideration ; accordingly, an enemv's country mak^s nil the inhabitants enemies. So, indeed, at com- mon law, the country gives the character to the persons who inhabit it, in mutters that are governed by the character of the C(Muitry. The British-b,.rn subjects of a ceded colony h.se their character of British colonists, because their country has become foreign ; they are re- strained by the navigation laws that before protected them ; they camiot trade as JJritish colonists. They are fmeigncrs, (hcrcf.^ir. in everything that relates to the country they live in, as the civilian contends; but the common lawyer will add, thev are in their own per- 92 i \\ ^. ^>. IMAGE EVALUATION TEST TARGET (MT-3) / o w y ^ #p ^ % 1.0 LI 1.25 'Z U^ 12 1-4 mil 1.6 % >/ .> c>^ >:v." /% ^? A c/;^ Photogi^cipliit: Scienc:es Corporation 13 WfST MAIN STRUT WtBSTfR N Y I4M0 (716) ITl-^JOJ ^ 722 OPINIONS OV EMINENT tA'.WERS. :m "^^HR^' scnal rights still British subjects, as they were born ; and they will be entitled to claim the privileges of such whenever they remove from the foreign country which obstructs the application and exercise of them, and come to a place, that is, some place in the king's dominions, where alone the privileges of a British subject have their exercise and application. In truth, the character of a British-born subject is not merely national and local, but personal and perma- nent. It is born with him and remains with hmi during life, never to be divested ; unchangeable, inde'iible. It is not so v/ith what is called a British fubject ; that doo^ indeed, depend upon locality ; and that is the character w!\ich the civilian contemplates. I helieve, much of the mi.^apprehension, upon this occasion, has arisen from not preserving the distinction between British subjects, and natural-born British subjects ; they are not the same, though, I believe, they are reasoned upon as if they were. British suiiject, and alien, are not terms contradictory; Ijecause the two characters may concur in the same per- son : the inhabitants af the Dutch colonies, now in our j)ossessi(m, are British subjects , they have taken the oath of allegiance, and tliey have the advantages of Briti>it a foriign country ; nor are lliey aliens, because thev were not ttorn out of the kin^;'s allet:ianee ; Imt thev are nat\inil-born liiilish sulijects, be"iiuse tliey were l)orn witiiin the king's aUegiance: •<> that it may be predicated of the .same person, that he is a • British op TBE LAW OF NATIONS. 723 ^ubjoc,,-. „„d „„ ,.„,;,„.„ that he is «a natural-born B. .l,»h .,ul,jccV and not a " British object :" aocordin. l^ as von .p„akf,l,e local and nationnl character. „°. of he personal character. " British subject" is a l-rn f co,nn,„n parlance, that has not proper!,- a leal de rn.cd ,ncan,„«: it serves snificienxly in o dinarfd . "-■sc .,.. "„atnr.l-born subject," but it can be „r„pc. v P ed™ V or i„tin,a,i„g the local and n„ti„n.ll d,:.; ■Htu, Tl.c true legal dcseription is that of n.,tural- l»'."-b.,e-t: this 1, the opposite ,„ alien; and t cse ■■"'iK' ';■.•.- .bat describe the personal char.^ter.wl'- only one ,l,a ,s a sul.ject of discussion in the books of the ooniiiioii law. Through the .hole of the .rg.nnent,! have been - >t,„g on th.s p..onal character of Briti^h-horn Anenoans; hut those who object torn,- conch..sion in favor o them, from the oomn.on huv principle (which mOK,weve,thevao not pretend to dilpu.:) Up then. e,e pr.noipally on the local and nationai ch.u.uter ,>f the present Americans. Their two great ..p.c.sare.p.ite of that sort ; namely, the stat. 22 Geo < • 4(. lor n.aking peace or truce with the colonies -' "a..fat,..nsa,.,| the definitive treatv which uc k"-vl..g.. „,. iHUependence of the United State. -.'I .vuwp.i.hes sovereignty, propriety, and terri^ '"■"!'.;'""" "■ '^'"-"b- all these are national and 1-';1 'e to be the ccmdition of the revolted Americans, since the recognition of their independent commonwealths." — l_Vol. i. p. 382.] OF THE LAW OF NATIONS. 72c To those who insist on this a. an anthoritv for saying that such persons hoconie aliens and cease to he naf'iral born subjects, it , night be enough to rep] v, thatap^o- pos..onh.K^ao.n with an alternative;, this .sZ not ,n ,t suffic.ent precision to be authority for an, th.ng: "effectually aliens, or liable to the disi.biliti Tof alienage, is a circumlocution that does not suit with the plainness re.iuired in a juridical proposition And :.e , thud: the author has expressed himself not un- suitably w,th another sense of the word ulieu, accompanJ- ^as here is, with an exposition. It seems tl L that or ,s not intended he.e to be a conjunction merely; but It bears a sense that is not uncoilon^t ntroduces a member of a sentence that is n.eant to be explanatory- ol the foregoing; and is the same as '< or in otherwords,-^orto... A more plainly,'-- or to speak -- properly." In this .sense of <^.V' he explain he nieann.g..^..nectually aliens,' by shewing, they arl -Me t<. the disabilities of alienage in .esp^Uo'ti;^ hm.re concerns with this country." Their " future con oorn. with this country" mu.st be the trade the. carry onw,thth.s.ountry; sometlnng wln,.h they iran.sact "•"■" 't .i.stant place, something that affects " the whole co.mnun.ty, .something that ari.ses out of their h,cality an national character. He is sp.,,,;,., ,, ,,,^. , J and national chnracter, which we .li.scussed before (in pa. o!.l.)and whirl, was superinduced .m the inhabitant. '•' these ceded countries, in respect of which the in- ""'"""*■' ' '""^' ^' «P^''i^'« <>'■ alions, or as the author ^'Npresses >t m an undefined epithet, " effectually aliens " "-•,.'fortwo purposes; Fi.-st, To '••-'"■ ^1- '-^ to make pe,....e or tn„.e with the colonies ;": I'l^-'tat.ons ,n question; Seeondlv, To enable the k'ng to suspend the operation of certain acts of parlia- I i 1 1 728 OPINIONS OF EMINENT LAWVERS. ment that might stand in the way of peace. The need of the second provision is ohvious; the need of the first is not so phiin ; but we are told, in a debate m the house of coninions, by the attorney-general Wallace, ■who drew the l)ill and moved it, that it was intended to give the king a power of alienating those colonies; a power which he, and some others, considered the king as not possessing l)v the common law. Without saying any thing, at present, on the justness of such opinion, we allege it as the l)est testimony to the design of the act. This design is perfectly consistent with the con- ception and wording, and it does not appear to us neces- sary or proper to supjiose any other meaning in this act. We conclude, therefore, that there was no particu- lar design, hy this legislative measure, to make anv alteration in the character of the Americans, beyond that\vhich necessarily must and always has followed upon the cession of any of his Majesty's coh)nies. After these observations on the act for enabling the king to make peace, we come to the definitive treaty itself; and we find ourM-lvcs compelled to declare, that as we per'X'ive no desigr, in the act to enable the king to alter the personal character of tlie Americans, so in the treaty wo discover no declaration or provision that can be construed expressly, or impliedly, to altci- their original character of natural-born subjects, and to make them aliens. In the first article of the treaty, the king acknowl- edges the United States of New Hampshire, >.^c. kc. to be free, sovereign, and independent states ; rnd he re- lincpiishes all claim to government, pmpriety, and ter- ritorial rights of the .same. It is upon this provision, nnd these words, that the separation ami independence OF THE LAW OF NATIONS. 729 of those colonies are grounded. The effect of this pro- vision apper.rs to us to be confined whollv to the soil and territory, which is thereby made foreign and ceases to be a pan of the king's dominions ; we cannot discover any ti,.,g that at all affects the personal character of the natural-born .,ubject«, inhabiting such forei-n ter- nt')ry. ° Indeed, we are much surprised that any such peculiar effect should be ascribed to this cession of territory to the U.ated States, (for so it is, in truth) when at "the •same peace, the adjoining colonies, the Floridas, were ceded to th3 king of Spain; and no such consequence of the ces.,or ure supposed by any body to affect the nat- ural-born subjects residing there. We may here too re- mark, tnat the cession of the Florid.s was made with- •Hit .ny such enabling .statute, by the ki«g-.s common law prerogative; which domonstrates, that in the opin- ion ol the majority of parliament, ^l-o approved the treaty, the act of the attorney-general Wallace owed it« origin, not to an absolute necessity in law, but to an abundant caution, or some scruple in politics, which de- serves no regard in" a judicial consideration of the sub- ject. Wi- are nut able to ...scover anv distinction in the two cases of the Floridas, and of the Un-^ecl States. In both instances the soil was made foreign, ai-d the inhab- itants had superinduced upon them a new local and na- tional character; that is, they became locally the inhab- itants and subjects of a foreign nation, and th:-y lost ad- vantages of trade and benefits of various sorts, which natural-born subjects must lose, when they inhabit and make themselves subjects of a foreign land. But, under the control of this new local and national character, their personal character of natural-born subjects stiU re-' t7tJ I. rso OPINIONS OP EMINENT LAWYERS. m.iins, and we see nothing in law to prevent it reviving and enjoying all its privileges when the ]icison conies into the King's dominions, where alone the rights of a British-born siil)ject have their full application and ex- ercise. Having declared this onr opinion, that nothing is, de facto, done b} the act or the tieaty to take away the personal character of natural-born sulyects residing in the United States, it may seem unnecessary, though we think it not unsuitable to add, that we know of no in- stance where the crown has presumed to exercise the power of taking away the personal i-ights of a natural- born-subject ; neither have we met with any principle in the law of England that warrants si;ch a supposition; nor can we conceive any proceeding by wiiich such a di- vestment or extinguishment of natural rights can be en- forced. As the common law recognizes no such princi- ple as that of disfranchising a iiatural-lK)rn subiect, the character has been deemed indelible; and the parliament has never interposed, on the occasiims of cession of ter- ritor}-, to take from the British inhabitants of such coun- tries that which thecoininon law has permitted them to retain. Such having lieen the construction of law in cases of cession, which have been made sonietimes, no doubt, against the wi.^hes of the inhabitants, and always with- out asking their consent, a principle of Iaw has grown up and established itself, which it seems too late now to question in the case of the United States. V.'e have given full coiiside:'ation to the difference of circumstan- ces which led to that cession, th'' rebellion and war that preceded it, and were the cause of it, and tiie claim of the colonists to be independent; but, we think, this dif- OF THE LAW OF NATIONS. 731 ference of circumstances makes no alteration in the legal result arising from the new situation of the parties. Such matters are, as we think, wholly political ; and as they are nut of a nature to be subjected to any juridical examen, we do not see how they can be brought into the account, when we are applying the legal principle before mentioned. Conformably, therefore, with the principle and prac- tice that have long been acknowledged, and declaring that there appears no reason in law for not applvin-the •san.e principle to the inhabitants of the United"^ Stltes, we repeat the opinion we before expressed, that the per- sons described in the question ought to be considered, in this kingdim, as natural-born subjects." Such, I think, would be, or should be, the opinion of the law-oiRcers on the present question. Dec. 21), 1808. Reply to ohservatiom on the sulject of the foregoing argmne)it. January 17, 1809. 1^'irst, I cannot admit there is any straining to bring the Americans within Calvin's case; and 1 maintaii° the circumstances that distinguish them from the pre- cise point in that case are fairly and fully considered by nie. It may not be necessary, in arguing with you, to ad- duce such authority as Calvin's case, because ycm d) not dispute it. l?ut (he persons I had to deal with wei-e ig- norant of the principles of that case, and I needed such an authority to si'i them right. I know no book case where the principles of allegiance and native rights are laid down and explained, except in that only instance ; I 732 OPINIONS OK EMINENT LAWYERS. the principle and nature of allegiance and of native rights is the first step in the present argument, and the subsequent parts of it would have been without founda tion if I had not taken that case for a basis. The necessity for going so far back in the argunipnt was shewn to me by the civilian * ; who laid down the law, that the kings subjects of a ceded country become thereby aliens: when he called for some decided case to show the contrary, 1 had no decided case (you know there is none) but the resolutions ai\d arguments of Cal- vin's case. He felt this to be an important authority ; and the piece of law, which you admit, i doubt whether you can ground upon any other authority in the becks The circumstances in Calvin's case are diftV rent from those of the Americans ; but the principle is the same (I mean the principle of the resolution that I quote) . whether that iliirerence in circumstances makes any dif- ference in the application of the principle is the very question in hand. Secondly. You here admit that natural-born subjects, continuing their residence in a ceded country, do not thereby become aliens : you go so far as to think that, if they joined in war with their new sovereign against this kingdom, it would be treason in them. I will not say any thing upon this point, except to remind you that my argument is wholly confined to an American cciing to this country, and residing here. The other point in this part of your answer makes the main of your third article. Thirdly, Your third topic is, the diflference between ceding a country to a foreign power, and the constitu-% Ant. pa. 721. OF THE I, AW OF NATIONS. 733 tinf^ of fi sovereignty Irom among British .subjects, and •ceding the country to such new made sovereignty. You fall it making a treaty with the suljjects thems.uves, that tliey should hold the country as an independent state; ^' he ceded his sovereignty to thorn." You rely upon this difference in circumstances. whi»h you make between ceding to a foreign sovereign, and ceding U British sul.jects, as you term it; and vou mention^one .'.ertain result from this difference, that, in the former ■ -ase, the levying of war by the natural subjects would be treason; in the latter case, it would not. I pr.t^st I do not discern this distinction ; in both cases, the sub- ject IS put into such peculiar situation by the act of the new sovereign, and being so circumstanced, whv should It be treason in an inhabitant of Florida. inorJ than in an American, to obey the militia law of his new sove- reign, and bear arms against us, like the rest of his fel- low subjects ! Some persons would argue diff-erently from you on this point: those who distin.,.,ish the British subjects of the Floriy -ulij('cl<,tiurt'iM named, had e\})ressly relinqui>li- f'd. or were cxpi'esslx- dcpiived of their native rights, or whether sntdi depiivation arose out oi' it hy necessary ronstr'iclmn. I think such should ha\e ]n'vn the I'orin of the trans- nction. in order !i> coine n|i to yoiu' suppnsitioii : l/iit vheii we exaiuine it, we lind it to he tpiite aneiher sort of proceed in LT As to Mr. A.. Mr-. 1? . and Mr. ('.. it is a matter iii/i ,■ ifHuy n, /(/ : the\ are not partit's. not u.iuied, not a'ludeil to it d le- r.ot appear to have heen trans- ncteil \>v them. l-'l us I'onsjdrr the treaty of peace wiiiih \\\\\^ owed hi 735 ; give.s away to givu : hilt how should .smdi l m; it was h 13 tak aw.iyJVoiu Mr. A..aiidotli ri'c giit he construed to right.s to wiiicii thov w er indivi(hials.th(!])rivate ipon tliis. First, Art' tl ere horn ! T\\-(j qnesti ons arise hcrchy, >/(■/(/<■/», pret'jmkd ( ly, Couhl th«> king >/, jt/n: tal 1'" ii.ilivc rights or inh sui.jects can- must '"'" nndtiludes in a lumi, • tl oe •rscusseil m must he c\-er\ individual eax th seven ,|ii instance thou.rh iiig to iinllion<, is lail il-v. th a persi i;i I'lii 1' lee Mate<. and re- cui, he iiet-i oni\ lor him- sii("(--o,. and aerordin-lv th<>refo, I iplcs of the Law. ht> self, his hi iis, ,'in<| iiiid agreeably with the true pnn 'il'ine is honndand ihe sovcroigntv of those .St,,t. cease?* to ic iih Ihil Wl;ei<' IS til, per -oii.ii act of a|,\ \ ineri' can reliiKpnsliirii: his own rights' or if tl lere wa.s nuy Vot OPINIONS OF EMINENT LAWYERS. such proceeding, in fact, shew nie the authority in hiw that recognizes any such principle, as that a natural- born British subject can divest liiinself of his native character: tliere is no sucb authority; and there is the known maxim of la-.v against it, uotio potest cxinro pa- ir iam. 1 cannot, tlu'i-cfore. l)ring mys..'lf to distinguish the trcatv with America from the ordinarv case of ccssi to a foreiirn sovere itrn in l)0tl 1 cases. it is a transact on ion between the two sovereigns in which the inhabitants bear no part; and it seems <<' me a departure from prin- ciple, to say, that the American is thereby rendered an alien, while the inhabitant of Florida is allowed to be still a. British-boni subject. Fourthly, I have raisi'd im) question (if the king's au- thority to make tlie Ameriian treaty. I agree with those who tiiink he might iiavc made it witiiout the act of parliament ; and I agree also with those wiio tluMight the treaty fell wilhin the authority of the act. I am sat- i^lird with the treaty, whether with or without the act; but I contend, tliat luither tlieact nor the trcatv had in CDiiti'iiiplatiiin to makt ncitiici- one or oi her till' Ameiic;ins aliens ; and that .f tl ios(! instruments has. in Doiut ()!" law. tlic power of producing such an cllcct. 1 raise noipicstion upon wliat passed in ])ailiamciit ; if the par- liament approved the treaty, tliey left us to draw the inlcrciiccs and make the construction that shall appear to l»eh)llg to it Fiftl Iv, and lasfi\ . \ou achiiit tiiere are ditlicultics in deciding thiit the treaty c\cm|)ted t he .\iii''ricaiis fi-oiii their aUcgi.mce. ;i:id e\(diided ilicm I'rom ihei;- riizhtsa-J Britisli subjects.'" in my oiiinion, ihisi' dilhi ult': ■* ire made and iiu i Msed liy introtbicnig plira«-es and rai'^mg or ••HE Law ok na construrtinns upon them, proceeding and adi TioNs. 737 without lookinc,' to the real lerins^ laithfully to fho lettorof it. exeiin ^ou tall< hereof exempting the Americans f allegianee : Why make a question of r the king does not chiim it? And wh rum their alles fan he huilton the affirmat glance, wlien at consequences ive o tion I What if li IS a suoject's allegianc i" iiegjitive of tin's q ues- resides in America, althou-h 1 'I! wortli to the king, native of London? !t is worth notl loine, Avhat docs the 1 le i^ ''O/ia p'Jp iuses to come I ling. And if ho ro- (IK 1 the i\v ay II pfirhamentdo in a like on and what so. I'liry VIII. 0. 4.*? All in Stat. 14 and 15 with the treat' All ogia.ice lias nothing to do national and territorial. The t •'glance Is porson,-,! ; the treaty is metes, -md it- l.ound rcaty regulates Innd, its ■^ : and the "■< treaty leaves and transfers to others, fl •■"initry ; the person^ ;,n.l 1 heir all vernmont of it the le States of the I fleet ed Alio egiance remain un- >nco, and IhtMefore must be ascri})ed to his own act andclioicc. — But those are in cnses of such a character as is capaMe of being actpiirod, ami, as it is ac(piired, so it niiiv be lost, l)y his own act ; such is a man's local nnd nutioual character. But the character of natural suliject, which a man is born to, and to which is applieti tlio maxim, ??( )uo vobixt (.riicrr patrinm ; to lay it down as a ])osition ol' law, that it is in a man's own choice to deeidt>wiietli- er he will put otVthis character or retain it. and that his continuing his native character depends u[)()n aUer- ing his domicile ; this is, surely, one of the most sirigu- lar noselties that ever was attempted in tlie face of an acknowledged jirinciple to the contrary. For whicli |)rinci|ile I unist again refer to ("alvin's ease, the whole doctrine and result of which is, that the per- sonal lights e,l' a subject to which he was born, re- main iliiougli life. .111(1 tlirongh all eircumstances, uii- cbaiigcd and iiulelilile ; and that allegiance, and n.itive rights aii.-e wholly from Itirlh, md do not drjieud on actual local sovereignty lor their continuance. Such a device as this is n(>t interpreting the l.iw, hut making it. A temporizing scheme, reducc(l tailiau.eiit, for settling this national (jucstion, luighl very well he so niodelleil : it wo\dd he a half nieasuie t'.iai (ii'ohiibly would be ihoii^ht rea.-onaiiie eiioniih ; hut this ver}' character of it is sulliciiMit to discredit it :!I'' THE LAW OF NATIONS. 73'J as a piece of juridical reasoning: it is void of all r^toadl- ness of prin.;iple ; it has not even in it the consistency of the former arguments and conclusions, that '• relin- (luishing the sovereicrnty," that "acknowledging the states to he free," &c. &c. implied that there was an o.id of alleginnce and of British rights. The device was, I oclieve, contrived hy tho.se who found thev could not maintain the ahove bold couclusions, in op'",ositiou to acknowledged principles of law ; and, desin)us of doing something, they were content to lower their no- tions to a meciium between the two, which would sound, as they thought, rea.sonable in the effect of it, however unsupported it might be In p:-inciple. So iiuich for this half measure of '■reasona])le time," and "domicile," which 1 have had occasion before to re- probate. I h„pe the difiiculties in point of law, with which this arbitrary notion i pregnant, will ho av.^ded : if s.., the other dilliculties in point of liict, whi.-h vou mention, will be escaped, namely, the necessity ofen- • piiriug in e\,'ry particular claimant's case, wh.'u and liow he w;is domiciliated in America, or in (bis king- dom. llpnn the whole [ .see nothing to distingui.sli, iu a le- g:ii view, tbec.)nditi(.n of Americans from that of other JJrilisb sul.jccts re.si.iingiii a ce.ird countix; nothing 'I'l'ic li\ the king, notbmg by parb;i nicnt, notbliig l)v (heui.seivcs lud it ..e.-ms to mr, tin- person in .pi.-tion comh.g to tliis couutry is .still mtitled to tbe privileges of a natural-born sul'ject. Jan. 17, lyO'J. Jainuini 1\, bS(l|). \n authority is (piote.l for the notion of " optional ilouiicilo." U i.s said that 'Jhief liaron Evre h,.< been l^i 740 OPINIONS OF EMINENT LAV/YERS. heard, over and over, to lay it down, that Americans domicilod in the 1 nited States conld not be deemed British subjects, so as to navigate a British ship. There may be good reason i'or sucli on opinion. Tlie Chief Baron might liave considered that, under the order (if council for carrying on the American trade, (it was be- fore statute 37 Tieo. 111. c. 07.) American ships were to be navigated by subjects of the United States. He m.ight consider domiciliation as the best evidence of be- ing an American subject, it might appear tt) Uiiu rea- sonable, that such persons being allowed to navigate American ships, as American subjects, they should r.ui: be recognized occasionally as Briti.'jh sul)jects, when navigating i\ British ship. Such a discrimination might appear lo him to promote the principle of our naviga- tion system: as no ships are allowed to be British-built, unless built in the king's dominions ; it might seem to him an appropriate construction, to exclude from the. chariu'ter of British mariners, all those who cho^e to domiciliate themselves i'\ America^ then become a foreign country. Be it so; l)ut e;in they report to us, the Chief Baron ever laid it down tliat ])er.sons who so made themselves Americans, by residing in the T'liiti'd Stiites. might not afterwards be deemed IJiitish sul)iect.- and British ma- riners, liy cliaiigiiig t' .'ir doiiii(ul(' to some' piirt of the king's dominions .' I. .here jmiv thing in tin; jirinciple of Ltoiiiirilialiiin, which will enable them to snv tluit the fust choice is lliiid, and the character tlien-bv ac- quired cannot bi' ]iiit III!'? Is there imt as much edicacy in a sev(Mid, a third, or any other Mib.seipient choice of domicile 7 And become /'///cs (juotir.t successively British or American f Ail if not, why not / OP THE LAW OF NATIONS. If their notion is grounded 74 i should ho abl on any principle, they doi nici le e to explain to us why the llrst choice of precludes the advantage to be d any subsecpient choice. erived from Such are the queries that may he ])ut or, th of exchequer law, confined onlV to tl case of naviirat 10 tl the ion and of mar IS piece le very i)eculiai iner.s. There .still remains a construction on al principal query, why .-hould such iVivigation act, supported as it is there li circumstances of the c y th s peci- ase, be adopted, and made to govern in the general question of natural-born subj where there is notl ect, of it fit resid or ence, teiuijorarv part of the considorat »ing similar to make the application colorable ? . Certainly domiciliation, or never made a lorn ■subject; but simply th or permanent, ion whether a person is a natural- I was he was born within the king's all th e question, whether if d om icihation weighs any thing, the cl cgiance '? H case is resident here dom fii.s future residence lid prof owever. aiinant in this esses K ) make this king- IV r haps the Chief Baron upon a hah: a^^ carpus, would, in tl ant, have deemed his present residence and 10 case of this cl aim- nation declared t cient choice of d o reside here in fht hisdetermi- uro, to 1)0 a sufTi- omicile witliiii tliepi'in.Mple of 1 Chequer decision; perhaps he might a:; standiug on difl'erent case, and to be deeideil lis ex- oiisider this case loiiiid Irniii fht exel liequer regard to doinic-iliat «»n general principles, without ion. W c are so uiiinfor Chief IJa ron ined as to the ext<.iit of what the it seems to afford no safe 1.^ suppo.sed to have ruled at Jan Jsno. ground of reason ti/\iprius inir. that March 22, 1809. f 742 OPINIONS OF EMINENT LAW f ERS. I have boon dosircd, hy a >;rea* lawyor, to look at tho statute (/c i)icro.[(itira ret/it^, ch. 12. (/e fern's JVo'iikih- nornin. 1 s'ljjposo, he inoant this slioiiM prove to me that on King John losing- Norniamly, tho Normans ht- caine tlu rol>y aliens, and therefore the lands holden hy them ill Kngland csoheated to the king ; hut the stntute does not itnport this, nor is it so understood by Staun- forde. On the contrary, Staun'orde luiderstands that the N')rmans still continued English subjects, and were ad tipcaks ol' those who were iion. (id iithna ?vv/'V a))e tJie conehisKm on ion o ftl alien? Is he to be deemed an alien bevond lis Sll aliens, that not siiseeptible of deni/.ati ordinary course, because 1 irredeemablv such? A ppnsed all other ssu ! redly i le IS the description which ali i)u or naturalization in the e cannot bring himself within iue makes hin- the object of such lavor; (;r may we conclude that, not 1 detect wl lavin read iich IS to besuj)plie(l by such y in i)o.>^session of the character to 1 g the it ; in other words, 1 born subject 1 ant, he is al- )e conferred hv c IS not ail alien, but a natural- The latti r api)ears to me the just coiul shall accordingly say with confidence thattl thoritv of theloi-d-ch usion ; and I icre is the au- of tli(^ two 1 lancellur in cases of denization lOU -es of parliament in v.v. •es ol for the proposition tliat birtli out of the ! :"i<'«' is tlh only circumstance wluVhc.nstitut naturalization. inn- all W e inav he si ue such forms would not have I egi- es an ahem and constantly acted u[)on, il' tl ne rei )eeii settled ley Were not known to li'i'^'ll'y tlle^enerallawof the lan.l. Indeed, it iuition of alien laid down elementary or practi(-ul: the not lung more than the d,.t in all ;l e books, wl letli er '"dowing e.xar-iples are xiillicient : .^ 744 OPINIONS OF EMINENT LAWYERS. Natural-born subjects, aro such as are born within the dominion of the crown of England ; that is, within the ligeance, or, as it is generally called, the allegiance of the king ; and aliens, such as arc bornoutof ■ . — [Black- stone, 1. book, ch. 10.] An alien is one, wIidIs l)orn out of the ligeance of the king. — [Conivn's Di.^est. article, alien.] An alien, is one born ia a strange country, — [Bacon's Abridgment, article, alien.] And thus I conlade this discussion, as I began it ; relying upon established and known positions of law for maintaining juridical truth against hypothesis and the speculations of political reasoning. March. 24, 1809. (o.) ^1 di'icourse h>j Mr. J. l)e ^Vitt, co.icerniiuj Sur- inam. The underniMned counsellor, the pensioner of Holland, having understood by the ambassador Temple, that the King of Great Britain, his master, had not been entirely satisfied with the answer of the states-general of the United provinces, given to his Majesty, the Gth of June last, upon the account of the business of Surinam, be lieved it his dut}' to acquaint the said ambassador, that it is evident and notorious: — ■ 1. That the colony of Surinam is possessed by their high mightinesses, in their proper light, v/ith all tl;e rights, and a power unliinited of superiority ai\d sove- reignty, established and confirmed by these words, in- serted in the third article of the treaty of peace, "c///« r>lenorio jure ■■iiimnii imperii, proprietatiii, ct posses-si on- is;'' and by consequence, that all the inhabitants of the sr.me colony are subjects of their high mightinesses, pri* Vatcly, a.s to the exclusion of all others. OF THE LAW OF NATIONS. 74.: 2. Ajso, secondly, that by v'.itue of the capitulations wliich are found to liavo been made between the sove- reign and his .subjects, none can form any pretence, but only the said sovereign and the said subjects, recipro- cally ; nor can any other, no, not he or those who be- fore the date of such capitulations miglit have been sov- ereigns to the same su))jects, after an entire cession and confirmation liy i\ treaty of peace, or otherwise, pretend any right, or so much as permit himsel!' to makt' c( m- plaiut of the breach or contravention of the said capitu- lations: sf) far are they from a power of demanding a r'.'dress (.}• any reparation to bo made to tliem for the same. 3. That what is already said i,-. not oidy conformable to the disposition of common right, but also to the judg- ment and practice of all kings, states, and prince ;. For example, thei.- high mightinesses have, by their arms, r.iiide a conquest upon the king of Spain, upon the towns of Bois le Due, xMaestricht, Breda. &c. and yet accpiirod not possession of them, but upon hirge and advantageous capitulations; and, nevertheless, after the full and entire acquisition of the propriety of the said towns nnd places by the trea.y of peace, when any question was made about the explication of the said ca])itulatior..^, or ctmi- plaint made of waut of execution, the said lord, the kin"- of Spain, never undertook (as indeetl he could not) to urge their high mightinessps, or to speak to them about I he cxccutiou of their capitulations. 1. The king of France possesses in like manner Lilk", Doway, Touriniy, &c. ; and yet. all the v.oijd agrees, the king of Spain has notlung to do, since his entire cession of ;ho^o places to the crown of France, by the treaty of peace concluded lately at Aix la (Jhapelle, to interest 95 I w. 746 OPINIONS OF EMINENT LAWYERS. himself for the execution or not execution of the caplt- ulatioDs which were in.i(k> upon their surrender, and hath yet less to do, to make air' quarrel with France upini this account. But, in case the inliahituuts of Ma- estricht, IJois le Due, Breda, &c. as also those of Lille, Doway, '^()urua^•, iscc. judge the ca})ituJati' iis are broken, all they can do is to carry their coinplaints and peti- tions to their sovereigns, viz: to their liigh iiiightines.-x's, and to the king of France, respectively; otherwise, tliuy would render themselves notoriously guilty of tlie crime of rebellion, if, in this case, they should address them- selves to the king of Spain, and desire his succor and intercession, and highly offend the majesty of their law- ful and only sovereign; as also the king of Spain would, on his side, notoriouslv violate the treaties made by him, and the law ol' nations, should he interest himself there- in, altliough he should do it upon his own proper motion and without being required i.o do it; since in so doing he would still attribute to himself some right t)f superi- ority, or at least of protection over those whieh have quitted, his ]irotection and subjr'ction; as to what con- cerns the possession, by the right of war, and as to what concerns the propriety, ))y the said treaties oi' peace. o. It i without all dispute, that their high mighti- nesses are obliged, by virtue of the said capitulations, to let the inhabitants of Maestricht, Bois le Due. and Bre- da, iJicc. enjoy the free })owi'r to transport themselves fidiii tluMK c, without any h-.i-.'-siitce, into what ot!;-'r place they pb'ase, as als i away meir goods, r'oveables, and to continue the propriety and possession of their immoveable goods, notwithstanding their re- move, or else to sell either of ihem as they please. But this, notwith.jtaiiding, if their high mightinesses OK TilE LAW OP NATIONS. 747 think (it to '".-r'ji.I '-i^in, or to hinder one or other of thern; yet doili it not belonjif to the king of Spain to conii)hiin of it to their high ni ghtinesses, nor toclenuind reparations lur it: moreover, his niajestv, by so (l.iiiio-^ wonld notoriously wrong their high iniiihtinesscs. But the said inhabitants have this only way left to thtMn to address themselves to their high mightinesses, us to their lawful and only sovereign, by their complaints and petitions. G, The colony of the New Netherlands has been like- wise subjected to the power of his majesty of Great Britain, with a very large capitulation, and it is proba- ble those of Cabo Corco, upon their surrender, have also made some stipulation. Nevertheless, their high mighti- nesses well know that at present, since the conclusion of the treaty of Breda, they are not-permitted to ente>- in- to dispute witli the king of Great Britain upon the ac- count of the capitulation of the New Netherlands, or ]>y virtue thereof to demand any favor for tluse who wero" their suljjects before the said capitulation; l»ut in case those, the sf.id formerly subjects lo their high miirhti- ne.\ I'orce of arms, under certain nirreeiueiits, conditions, or stipulations; and that the said possession.^ have hecn since '•ouiirnied to them by soleiini treaties • ■ with the said lirst sovereigns; the wholo world Id be (li~;tnrbcd and turned fii>side down.ii' the said mad w oil sovereigns shdiild still I'oiin their ])retensiuns, and plead that tbi'\ had a riulit of j)rotection upon their former ubjccts. to obt.iin from them liie execution ol the arti- siipulatiil for in the said caiutulations : so tliat it clc cannot be jii-tiiic(l in this (."oiitroversy, what is held to the coiitraiw or wh;it is cNccpted uixm what liiis lii'cn bef. 11 f appiicil, \\y. that ar tli C I'lKl I >l the 11. 'ic ( i| till' tira(\ ol' Ibcda. ucic /■<> I I nil I lllll'SI. I 'I' Ot^ciipdi't rnf < t y<"sv somethinLi' more I li on< ol the t w r//7, a~ il bv tbt'^c words was meant II tiie extent of the po-se^'-ioil, which o con: laclors ell'ectiiall"' ii.id upon the day there iiieniioiicd , oia< if it iiiiubt be inaiiitained, tiiat t-.lie WMi'ils liinited al-o ilic power ol liie po^sosois tor the fiilnre. \s liirli i-;, nevertnele.-is, notoriously eontrary to llii'ii true Mii-e; and it appears yet evi^ed in the very nejfoeiation of the peace; for Hineo the same article deterinine.s very clearly and expre.ssly concerning; the right ol the po.ssos.sors for the fiitur*', that it should be an aliMilntr and iinbiiiited sovereignty in these words, 'conventutn ]})•;( tcna ett, ut utraqne jam cUsi'jnatarum parlium, cum pknario ju7'e or THE LAW OF NATIONS. r49 ■wmnn imperii propriefatio e( pomessionis, omne9 ejns^ mo(h ttrra-s, imnht-s, vrle.s, munimenta, Joca, et colon/as temat tf po.^9e,t auto hoc helium, ullis rePro temponhm, vi et ar- m,.. a>,t qHoqiio moc other party should have m his power, the mild ,; ..(• May. F..r to give any other sense to th«I 750 OPINIONS OF EMINENT LAW VERS. said words, it were necessary to omit wholly the word "ucciiparcriif;' and instead of the words, "rum prorsuH in modiim," to have put in, -to iiror.<:ii>^ jitn: ,'■ and yet, even this way, we should meet with a contradiction and notorious absurdity, viz: that on one ride countries and places should I)e given up with a right of absolute ami unlimited sovereignty, and on the other side, a.d as to th( une rights, as the possessors had possessed theui in the i; of May; fi>r, if l»y tiic latter words was iniderstood any tiling less than a right of an unlimited sovereignty, they must necessarily fall into a contradiction and mani- fest absurdity. But all this will iippear with nuudi greater evidence if we well cimsider what passed at IJreda during the ne- gociationof the pea. e, and paitieulai ly that when it was insisted upon, on the behalf of their high migiilinesses, for all that had been taken by either of tlie paiiiv,-, lui- til the knowledge of the i)ea.'e should arrive al all the territories of botii parties, either by ])roclamaliou, or otlierwise, or at least, till tlie day of signing the said treat\ ; tiny ordered their intention to be t'\i>ressed, and to be i>ut in the hands of the me(liators the .".nth of Ma\. in the ■^anx' \car, lUii", in ili">e words, ■ Conven-< tiDii ])rit( i-i'i t-yt. iif iiln/'jiit jitiii ilisi.iiniiiinnii jutriiinn, I'll), I I'liiiir'ui jiirt .suuiihi i//i/>i rii, j)i'<>/>rh ''/ft^\ ,r jni>i,s/rUN,, 'Jlicfjiiot durante hoc /n/lo, ant ante hoc In-JImn nlli-s trtro ttvipor- ilius, vi et anniM, ant quoqno mndo. iil> ,ilt, m j-nrte (wcn- jjavit el retinnit, cam prorxnn in modmn, ipio en po.ssidtf>it tunc tenipori^, cum pr:i^eiiti pacis tri'ctatni ^nUcriUtar," which last words having ii relation to a ti'ue to come, and to things which migiit hai>[ien alter tlie date of iho OF THE LAW OP NATI ONS. ol Pa .1 proposit tation oi ion, could not contain any thincr but a li si.uTiation of tl'.e m- they should he found at the d possessions, in such state as ■Ay of the signing of the treaty ; anct,ur\ W( ine I'ven already past. in which regard, the (tinfti, IS lu the end agreed to, not oulv tl lese '>/vv, vinn ■re cl I'lc'^rnti ]i(ici< tia^tntiii su')- •s\ 'fie Mc langed, to put in the 1 tui ''"/>'-"''''"^^'/'VAsv,"and the w(.r(l " 'I into .h,-.t „f "/.Y>v.v,.A>," but also 1 ollowing one.s ' y.Y).s'.v///(7/// " 'aid change, the said cl )ecause, by the plicahle to a t imc ause reudered the business ap- past, and aH'air^ ab-eadv d OIU conse.p,entIy, that hcrcaH.r it n.ight be ihout^ht th tiu aid clan.' and, at ti( •'■ according to the intentions :>f t! s, nil ;l'» Im' applird to th(> rv-ht a!id to tl le par- hy which they w •'oinitiy, or to t; ly and oiii\- t.' th le Co ndit ions ere icikIci «'d niastci- of siicli a •'on .iiiir (' (ICCIl to t; a(liiniild Innii t' iHi,\ thing •!)-^oh;t( >\v |>( IVv,. -or """'•• th.M.n|„.,i, and whirl, ua- .Jrlnorcd propo-i(io|i \vhi,h ney 111 writing to t 752 OPINIONS OF EMINENT LAWYKRS, aL the plenipotentiaries ot" this state by the mediators =n solemn conference, July 7, 1007, not c(mtaining any tiling from whence can be directly or indirectlj/ gather- ed any other sense. The formal terms of the said pro- position are these : " Oinncs retjiones, terra., insul/\ colo- nice, civitdfe-'i, oppida, prasidia, prcjnignncdti, oUcranue munimenta 'j t>-^ ah alterutni parte, ante 2(J dium Mjutii >v .>nt of the road whidi was usually followed by kings i)rin<'cs, and >tates ; but ^.very oiu- was left !o an absolnt(> iuid privativ.' disposi- tion, ac'-ording to the order and cu-tMni, upon all nlaces ♦•ompiered r.nd given n;:, a> al will 1, an efVect of the discretion, civilitv U" upon it as an. ♦heir high mightinesses, what ^oevi-r tli.'\- ) Iru ndsl iin ot to time, disputed witli his ministt, answer, whicii hath b-cu al the exjioundliig and Suriu.'im, as tlicy will aL known to his r.u: jest ihove exeiMitioii of lave, from time s, and deidared in the poi<(')i (if eon("ernimiC llio capitiilatidiis of ■o he alwa\s read\ lo make it y and his m:iii>t,>is, that thev will not be less diligent in the punctual observ.ition and ecution of all tl ex- leii- ])romises to their own siil ihey shall be ,>[ tliat t. bv tl licet- than whicli thc\- 111- foniiallv obliged le s( lemn iti OS nia((' Witll (lllicl- niK I -);it( ■ 111; IU'IIIC(V« li(\ alsd |)(i pc it, fidiii ill,. I'd ('(piity aiyl di-,'retioii i<\ b not look upon theseexplaiiat -o iiiMili iciiown- 'ii'ii''-t.\ . Ili.it he will ions and dcclaniliniiv dthcr- wise than as they are bciv ^aid : and, that neither from licuce u r lioiii .my precedent trcat\ , li(. will d i'oii<(Mpieiice. a> tlic\ uave 1 iiin an\ ri'.iiil cr raw any lion .'iirainst hell iiLMi uiiuhtiiu'sse aiK ■^loiier ol II I'ouusellor |)en- oilaiiil. ( -lie ytj ;hc >aid aiiiba.-ador Temple, hi iil I 751 oriMOXs OF eminent lawyers. tliat he Avonld iiiiiturcly cnnsiclor tlio abovesaid, accord- ina; to his ncoustomod equity and that he woidd so well hifonn the king of Great Britain, his master, that here- aftei- thi ' may not be a!iy further diflerence upon this point, between his majesty and their high mightinesses. Given at the Hague, Jtdij 2, HW.). Jean De Witt. An austccr to Jfr. de MlU's paper, conci.iniug Suri- nam, My Lord ; As there is great maturcness in the discourse of my lord de Witt, and niuc]i strength of argument in what he hath delivered in that paper, so the main of its force doth seem partly to lie in the e/]ual right granted by him to hi< majesty, in tli(> country of Manhatous, as is desireil for Surinam, and partly in his allegation of mat- ter of fa' t ; and, thcrcfuie, tlie substance of all my lord de Witfs manaiiuicnt of this matter, concerning Suri- nam, ma\ , as 1 humbly conceive, be reducible to two beads only. The first, drawn e the present case of Surinam, on th;> part of ihe Dutch, and of the M hat OU,"' ecjually on the pa it of the Endisli 111 lj which cases, the lord de Witt doth frankl in- oth V trrant, that the said articles and coiidit ion- iu honor, justice, and conscience, ought to he strictly ()i)servcd and inviolaldy kept with the said iiihal)itaiu<, hy that state that hath tyof |)^)sscssi()n and sovereiirn acquired tho said plenary them, as what is but the indubitable and iierDctual lif-ht of the said inbabitant.- But that which mv lord de Witt insist.- upon, and principally contciuls for, is, that after the said cession or reliction of the sovereignty of tlie [>lace to any state is \ ist, the dispensing of tiiat justice, (hie to the said in- habitants, by virtue of any forniei- treaty or articles of surreiuh'r, doth, not only singly, but exclusively belong to the right of the said state wIhj is prcst'ut possessor of the said jjlai'e, a< an iiiseparalde branch or part of the sovereign!;, ; and that tlicre lietli iicitlicr any right of appeal in tlie inb.ibitMiits (,f tin- sjid pbicc- -o Minciuler- ed, nor so much a-- right of mediation or iiitcircssion, and much less of judguiint and ail.ilialioii in bini that was the former sovereign ; allliou-b iIk- present sove- reign of the said jila.rs should citbcr liiij of olwcrvin'' the said aiticliv-, or should do aii\ liijui v to ibe >;,jd in- h:ibitaiil<, aiM ibercfoiv tboiiuli tbr I'Jmiivl, ;i| Surinam have several undeniable i ight •, w hirb d . belon- to tbem by virtui' of the artitdt^s made ly tbem at tb.' scrreiider uf the said place, and such as they may in Justice ex- ai 756 OPINIONS OP EMINENT LAWYERS. pect to be made good to them ; the judgment, neverthe- less, of the rights, with the due dispensing and adminis- tering of them, is, siuee Jie general artieles of peace, so much and so exxhisively the i ight of tiie states-gen- eral, as the said English neitlier can, may, nor of right ought to api)ly themselves to any other than the said states-general !()r the making good tif them ; nor hath his majesty any right now, nor any color of right, to become a mediator or intercessor on the behalf of the said inhal)ita!its, his majest}' having by the articles at Breda relin(|uished the sovereignty of the said place wholly to the states-general. And thi.s assertion of the lord de Witt's he doth en- Jeavor tcj enl'orce liy the precedent of tlie town of the Burse, and Maotric'at. and other places taiven in the war between the Spaniards and them, not without con- ditions or articles (if surn'uder, and since relinquished in ],jint of sovereignty to tlivm li}' the general treaty at Munster ; since which treaty, therefore, as the itdiabi- tant.s of Burs.>, or Mae trea- ty at Aix la ('liapellc, where, though the iidiabitants have many rights reserved to them u[)on the surrender made by them, yet the obscrvaucc or nou-ubscrvancc of OF THE LAW OP xVATIONS. 757 the said rights, or of any of the articles or conditions made with them, is equally as much at the pleasure of the king of France, since the king of Spain's relinquish- ing his dominion to them, as it would have been had he held them merely by virtue of his conquest or ob- taming of them without any after capitulation ; and therefore, though the king of France be in honor and - justice bound to conserve the soid conditions and articles made with the inhabitants of Fl-^nders; yet if he shall neglect it, or do any thing to the contrary of it the king oi Spain, nevertheless, cannot interpose in ^t' nor can, upon any such injury as shall be oftered them 'pre- tend to any right to become a mediator and much less an arbitrator for them. Thirdly, he enforceth it from the general inconveni- CMices that must follow on all treaties, dispositions, and translations of the sovereignty of places, if the places once so conceded or relinquished, should have their ju- risdiction or dominion so mixed, as that anv, beside the present sovereign of them, should challenge a right of interposition, nK..n'-on, or arbitration, by virtue of their prior right ot the sovereignty to them; seein- if th.s should be once admitted, there could never be Tny peace, or any end put to the settlement of the sovereicru- iy or dominion of them. " Fourthly, he enforceth it from an argument (r: y.^nj) that, seeing by the same articles which have been made w.tl. his luMJesty at Hreda, tiie Dutch have relin.iuished their sovereignty to the Manhatons and the whole region of It: the states-general, therefore, neither can '^nor ought to interpose for the inhabitants of the said New Netherl.mds, in reference to any articles or conditions made formerly with them, or to the perforniauce of them, i M I 758 OPINIONS OF EMINENT LAWYERS. i but ought to leave the whole dispensing of that right to the proper jurisdiction, power, and sovereignty of his majesty, and that without any interposition or mediation on their part, though his majesty should think fit to violate all the said articles or conditions with them. All which arguments, my loid, are so strongly found- ed, and so advisedly laid down, that I see not at present what can l)e said against them, if we shall admit the sovereignty of the said colony t<> be, by virtue of the said articles of Breda, really and plenarily relinquished to theui. The only differenco I can possibly discern in this case of Surinaui is, and nnist be, "herefore, whether the said sovereignty of Surinam he as perfectly and absolutely relin(iuished, by the said treaty at Breda, to the Holland- er, as tl-.. Burse was, and those other places before named, which is the next part or head of the said paper. Onlv by the way, my lord, inasmuch as the States of Zealand do pretend to the sovereignty of Surinam, and seem not to pUow of an appeal to the States-general, though it was the States-general, and not the States of Zealiuid, io whom the said country was by the articles of general peaeo delivered ; it nuist of necessity create not oidy a great dithculty, but a great disadvantage to the inhabitants of Suiinaui, who nuiy hy this means be much defeated of what is the proper right of them, uu-. less the States-general shall, as in reason they ought, assert their i)lenary jurisdiction and sovereignty over them, and give not oaly countenance, but leave, to ap- plv themselves to them, which is the utmost I can see his maje>ty can request on the behalf of them ; admit- tin<' the right of absolute sovereignty really to belong to them. ■ OP THE LATV OP NATIONS. 759 The next principal head, therefore, of my lord do Witt's papef, is to clear the absolute right of sovereignty, and to remove the oi.jection that is made to it by h* ' majesty, from these words of the treaty, " eiwi prurms in modum, qm co die Mail !,'> proxlme clapsl, omipaocrai d' po.^scdlt," which we english, "and that altogether, after the same manner as they had gotten and did pos- sess them, on the il) day of May last," which words are therefore contendc i for, by us, to be a qualification or restriction of that cession or reliction which is made by the said treaty of the sovereignty of the said place, and are urged by us, as it seems by those words, that they are obliged to hold the said place after no other mnnner in point of jurisdicti.m or dominion than as they were possessed of iton May ^^, which, as we truly allege, thev were by v.. ue of those articles only which we"re' made with the inhabitants of the colony at the surren- der of it ; and this I must freely confess to your lord- ship, I alway., took to be not only the genuine and natural, but th. indubitable sense and intent of the said words. But these words, as they are thus applie.i by us to a qualification or restriction of the plenary right of sove- reignty and jurisdiction, will, I perceive, bv no means be admitted by the lord De Witt, and the reason he seems to give is this, because such a qualitication, if in- tended with re;>rence to the said inhabitants, must sup^ pose a power to be placed in some or other to be an ar- bitrator, and to judge whether tlv.a 7nor/>/.9, ov manner of possession, be all along kept with the .said inhabitants or not; for otherwi.se, such a .[ualification or restriction can b.' to no i)uri)ose, nor of any efficacy or matcnal- ncsne at all. But this interpretation of it li.> utterly de- iff 1 ^ ' 760 OPINIONS OP EMINENT I-AWYKRS. nies, in regard it would then unavoidably interfere with the concession of that plenary sovereignty apd jurisdic- tion which is granted of the said place in the very same third article of the general peace, and must imply also with it a cuntradiction in the very words and gramma'- of the said article ; and that in regard a sovereign right cannot possibly be transf< rred, without the privation and exclusion of all right after any manner whatevoi- in any other person beside ; and because a right of judg- ment, arbitration, or mediation, if reserved tc or in any other, doth and must destroy, of necessity, such a right as is plenary and sovereign, so that these two can be no way consistent together; and therefore either the latter clause of the said 3rd article, " exin prorsits in inodnm, &c'' cannot be meant, as if it could be intended there- by to put a modification or restriction upon right -tf ab- solute sovereignty ^ ^fore granted, or if it shall be so in- terpreted, then must the words before mentioned, ''cum plenario jxye sui^imi imjK-rii^ proprietnti^^ & po>iStmon- is, omnesejmmodi terya-9. hea, d; colon ia-'^, t'-neaf <{■ pos- sideat in jms-ieruin,'' that is, " that either ])arty shall keep, and possess, for the future, all such lands, places, and colonies, how many soever, with pleuarv right of sovereignty, property, and possession." be wholly re- scinded, seeing these two clauses, being directly oppo- site, can no way stand one with anotlier. liat that 1)y the first words, " cum ploiarlo jure,'' an absolute and unlimited cession of sovereignty was intended, the lord De Witt dotli appeal to the circi;mstances of the treaty, and principally to -..^j or given in by the lords pleni- potentiaries of the L..'4hsh themselves, July 7, l('(i7, in which the former clause, ''cum plenario vtre' is provid- ed fuUv for, and the latter clause, "eum /);-o/'.w/.s> in mo- OP THE LAW OP NATIONS. 761 (/«//?," is wholly left out, and so the scruple is removed : the truth and examination of vrhich matter of fact, I must L.iibly leave to your lordship; f„r upon this ground, it is plain that the lord De Witt will have the latter clause, ''euin ]i,-ory>is in modum;' to he added on- ly to limit and re.train the possession, as intendinjr that f'.inse places strictly, which were actually possessed on either ..ide on May .1^, shouhl, as they were possessed without claim to any others, which wore not so actually possessed l>y them at that time, he mutually conceded to each other, in the point of plenary right and sove- relgity to them; and indeed my lord, this consequence is so rational, that if ihe matter of ll-.ct ho granted, and the plenary right of the sovereignty to Surmam be yield- ed to be conceded in the former part of the words of that article, there is no avoiding the latter possibly: see- ing, as it cannot he denied, that tlie latter -- '\ ''evm p'nrsvs^ ;n n.oJxtu:' do bear the for;iu of, and which as we have said is not done, l)ut is omitted wlK)lly. in that otherwise most full and accurate answer of my lord De Witt: for as we must grant iiiey have n. t only .1 right to (lie river of Surinam, but to so iii;niy other rivers also u|M)n tliat coast, as it di>th ajipear were not onl}' seized, but actual- Iv held and j>ossessed by them on May J,!, so nnist we •q^ualiy und strictly insist upon it, that Iwside what riv- WJ- ^1 OF THE LAW OP NATIONS. 763 ers they so possessed, and can prove that they wore then really, actuallv, and strictly held by thorn, they cannot challenge, nor ought wo to grant they have any right of sovereignty in them; and consoqu^. tly that as they have no right, so no pretension of any light, to whatever river or place was certainly and actuallv I'leld by us, upon any pait of that coast, be it where it will, so that, to apply the whole, as the Dutch there being p.-s- sessed of th." river Surinam on May •';, could give°them no right of sovereignty to, or over, Marawvn, Mapawyn, or Couiowyn, which are other rivers upon the same coast of Guiana, had . ot these rivers been then also actually possessed by Hheni, so their right of sovereignty over those rivers coming strictly by their actual unlimited possessing of them, can give them posMbly m) right to the river of Saiamica, which they wore not at that time actually possessed of but was actually held bv us; seeing if their possession of the rivers before mr'ntioncd can give them a right to Saramica, which they .-annot pre- tend to be possessed of, it may as well -|"""lly ^ive (hem a right to a second rivc-r, and so to a third, and so to all the rivers up..,, ,l,o eoast, which is absurd even by my h)rd l)e Witt's own reasoning, Who,vf„re, 1 .ni.elude, my lord, that Sarami.a being bcl.l by us mi M,,v '; jj ours in the .^uvereignty of it, by unquestionable ' right, and that, beside the rivers of .Surinam, Map.iu\ n, Ma- rowyn, and Cmowyn, we have a. riglit, eipiillv with (ho i)utcli, (oriiiy ..(lior riveiH or places upon Hiat ,,,ast which was the thing principally ai.ned ut in my last to express the duty of, my lord, Your birdship's servant. W. Temple. i . l\ r POSTSCRIPT, The Discussion, >)y tlie iJarristor, before inserted, was written by John Reeves, P^scj., the Author of the His- tory of the English Law, and of other Works, legal and political. INDEX. Ahsentcn from genoral assemblies may be proceeded against in the courts of justiop, and punished by fine and imprisonment, 2ow they becorao suhjecls, GOO to GGG. Alun enemies preserve their rights, by the law of natiooi, to \ roperty iu the public funds (if the hostile government, uotwitfastauding the war, 038. %^ t INDEX. 767 American acts of the 10th of February 1715, 1716, and the 17th of July 1740, expired with the war, 232, - goods taken under the American act of the Cth Ann, and carripdto ports in America, chargeable as prize goods, with 'such duties as would be left in England if the same had been exported after an importation, 58G. Amcrkan citizens, whether British subjects or aliens, 648. Am-icnt riplt/s restored on a re conquest of landu, 131. Ai>peal in legal proceedings lies to the king in council, 230. ——lies from the court of exchequer to 'he governor and council of the plantation, 489. ——and from the governor and council, to the king in council, 496, As,nnUics, ^tncral, \niho colonies, king's right to call and continue, 200, 231. ' ■ : """^^ adjournment or prorogation, may be prorogued without a meeting, 'JSU. ■ wbcther entitled to the privileges of English parlianen's, I'V and see '^'jr., 2'.I2. ; — ^ ^'"^ '^'"g''' prerogative in relation to them is as oxtrnsive as in England, ih. "'" '"' dissolved by the publication of a eonmission, detcrmini.ig the c.nimission of the governor by whom the kind's writs were tented, lil'.i. ^'I't are dissolved on the death of the king, 252, 322. -contra, 290, to .'i20. "" regulated by their charters, usages, and the common law of Englai. ', and are not entitled to tJie same privileges as the house of commons in England, -.'(U, 293. "'" ^'*-'''' "' ft-nding reprcscn'itives to, may be altered 270, 273, 27o. -neglerting tr, meet at the time to which thry wore ad- journed, fire not dissolved, 27 I \ \ *'"'''■ ''■''' "'■P Rood til' repealed, and are void only from notification of the repeal, 9.92 conviction ..f person in England U no legal objc-tinn to his silling in, 2'>.'>. — absentees from, may be pro-ncJed against in the court. of justice, and punished by fine and imprisonment, ,h. 768 INDEX. Assembiics, gener ^, have no power to impose a tax upon convicts from England, '33G. acts of, cf the same effect in the colonies, as acta of parll- ment in England, 35 I. -cannot alter the common law of England, or the common securities of the kingdom, or affect the king's prtTogativo, or take away any authority vested in the governor by virtue of the king's commission, 370. -whore patentees oflands have not planted them, assembUcs have passed acts for the resumption of those lands, 387. -acts, unwarranted by the charter, void, 40-^. —act ought not to be repealed wiiicli would injure the rights of purchasers under it, after a long aoiuiesceuco. 100. Assent, royal, precedent, as effectual as subseijueut to, a session, 309. Atcornei/ general, informations by, observations on, and act respecting, 493, 496. B. Bahamas, division of an intestate mulatto's estate in the, 150. treasure trove, the property of the crown, ib. charter nf these islanu :! does not entitle the proprietors to an adniiralty jurisdict on, 507. BarUidvcs, regulation of proceedings in the court of common pleas in, I'JO. whether the commission of governor ceased by the king's death "34 ; and see title Act . act for laying a duty on wines and strong li.juors imported into the island, objectionable, 3(jO. -private acts for docking entails objectionable for particular ground.-i in eacii act, 'Mu . net of 1 :'.i'J, for supporting the honur and di^rnity of the crown, objcctionab'e, 3i.'.>. act relating to the payment of bank bills objc'-tion-ibl.', as vari- ant from the instructions of the crown, and being infuihcicnt and re- pugnant to the laws of tiie land, tiie riglits of the subject, and the prerogative of the crown, 373 to 383. -act prohibitnig the carrying nwny white servants, without the consent of the owners, under a peimlly. iibjettionable, 384. -act obliging ollictrs to hand up tables of lees in their offices and cour ts proper, but punishment, without trial, for theomissiou, unjust, 3U1. INDEX. 769 iiarArtrf,,^., act to empower licentiate lawyers to practice as barristers objectionable, 39-2. — decree of the court of chancery, under which lands had been seized for noi.-p.^ymeiit of .tchnrity rent, which was not charged on the grantor's real estate, controvertible, 467. net to bar entail in l.md.s il.ero proper; as by the laws of that plantation, a deed re^H.tered there will be as effectual a bar as aa act of assembly, 485, liO, 487. approbation of acts passed in 1701, 502. ob'^cTvations on act.s in 1701, 507. Bermuda islands, report on the acts of assemblies in 1G90, 1 4 8 and 1701, 403 to 422. ' ' act affecting the importation of British goods, objectionable, 422 -observation.s on judicial proceedings there, 4':i to 4(37. Bomls from the governor of a proprietary government, for observing the acts of trade, should .,c to the king, his heir.s, and succcs.sors, 2GI. c. Canada, r>yjtr, crimes committed in, triable in the courts of justice there, 215. Canaij/ hiainh not esteemed i)nrt of f:urope, and wines may bo car- ried directly from thence to the jil.intation.s, 572. Caufrr/jini/, anhljishop of] his pr J. See title A'l iiniiistnU ion. Cuii/iina, coiihtitutiiiiis, '..76, ct sni. observations against duty of iO per rent, on British good: 58G. , ^"^outli, funds arising from taxes in, disposable only by the same autlinrity which rai.-cd them, y'.H'i. there fore a grant by the assembly alone, of p;.rt of the funds for ,-upporting the rights and lihertiis of Great Britain and America, and the c-oiise(|U.'iit p,'iyiii\\. ' ^»i' statutes made since tne settling arc not in force, unless the colonics be particularly named, 228, 511. ~~^~, cannot be altered by acts of assemblies, Co»>,ecnc>a, construction of the charter of, as to the power of making laws, 311. ^ Conquerrd parts, king may, under the great seal, tax and mak3 laws to bind, 15S, 231- Conquest hy the enemy suspends private property, and on a re-conrjuesi the ancient rights revive, and are rcstorai jure jxjst/inihiii, ISO. binoF inhabitants to allegiance by the law of nations, G12. Convicts, tax imposed by the assembly of a colony upon, illegal, -^20. Conviction in England no legal objection to a person's sitting as a re- presentative iu a gi il assembly, 294. Corpo ation cannot purchase lands which shall enure to then selves un less by license, 134. ' establishment of, for insuring ships, observations on 544 to G09. Confjnracy to entice subjects into a for J^ . - -vice is a misdemeanor, and punishable by fine and imprisonment, 55G. CountcifrifiHL' coin is only a niisdeniemior in the colonics, unless their charters make it a groat offence, 209. Crown. Hoe title hin'j. Cuiloms, officers of should seize j.rohibitcd goods, and goods for which the duties have not lieen paid, .■>74. cannot be concrned in trade and shipping, 598. M I) Denizen may be master of a ship trading to the plantations, 644. 772 s INDEX. E. East India Company, \^yf9,ngvamt British sul)iects engaging in foreign 557. . . license given thcni to trade, with a prohibition to others, good in law, 582. Ecclesiastkal authority abroad, tlio king's, 41. Eschcata on the death of the tenant, without heirs, cannot be granted before they happen, othcrwi.'^o than by grant or alienation of the scignory, 112. J on attainder of treason, belong to the crown, as a prerogative roval. — Qt'rryc, if grantable hefure they happen? ii. Eurnpran goods, landing of at Venice, and carrying them from thcn-3 to Guinea subjects ship and goods to forfeiture, ui.der the stat. 15- Car. II. 2G7. Evidence of a slave agaiii.'^t one who is or has been a slave is good proof, and an act was passed in Jamaica to prevent such evidence against a free negro, 498. Exchciiuer, court oj\ king by his prerogative may erect in the planta- tions, with the same powers as the court of Exchaiuer in Jlngland, 5C7. decree of, may be appealed from, to the governor and council of the plantation, tS.l. F. Jcf.t acts of Barbadoos, obliging officers to hang up, in their oifics and courts, table* of, proper, but punishment, without trial, for the omis- sion, unjust, 3'JO. Ech dc se. grant of felons' goculs doo.s not extend to, 170. Filona' goods, what passes by grant of. and what not, 170. Fines and rrciii'rrica, in Iv'.gland, v)f lands in plantations, cannot bar the entail of such lands, unless tlio laws of the jiluntation have provid- ed they shall have tliat effect, 488. Fish, ro'jal, may be claimed by prescription, 1.10. FishuiL' admiral in Newfoundland, their autiiority under 10 and 11 Wil- liam ill-, r,'S?. Fis/icri/, obs.Tvations on tiie cliarter establishing, .T^^. Forfeiture, if a provinee has incurred, no advantage can bo taken there- of but by sucire facias, to repeal the cUur^cr, or by iiKiuisiiion fiueing such forfeiture, ' oO. INDEX. Y73 Forfeiture, but it seems the king may appoint another governor without in-iuisition, and hi.s authority will be legal, 66. what pas.cs by the word forfoitu.e in a grant, 170. — effect of pardon, with reference to forfeitures,' 171. 'listribuiion of, under the acts of trade 577 ' iv.^^/,. dis.^ev:.,g the precept of judges, p-nilhable in a summary wa> by rule of nourt, b; fine and impri.onnu at, 74. ' G. ^Ci niXQ >iv I render. •oJ I's.-rvation on act of, respecting trade with Indian.-,, 591. Gibraltar, establi.hn.ent of civil jurisdicUon in I 83- Gorerno,.,f.,ant.u;.ns empowered to appoint naval officers, tore- ^.ve^-^r^,, of .ships arriving at tl,e plantation, 183 ''"^''- conHnission.s continue for six months af- ter tlickuigs death. 234, 300, 310. ~' , , ''•""'^'' "-^'^ «« councillors in the passing of ^^b^ll^when the council sits in a legislative capacity, 238. 239, ZWi. «'»r'0^vered to exercise the king's prerogative, ■ by virtue of tlic . -"nimi.ssion may disoossess the actjng government, and a.^.ume the go ernment, until the arrival 01 another governor, 213. : "'^""'J "'0 t'lc groat seal of the colony iu grant.ng offices by virtue of their commissions ; but a grant under the governor s seal may be valid, if usage dispense with the use of the g'-oat seal, 21»), 217, ~ "i^i.V prorogue assemblies, 247. ~ I'lay meet, ..Ijouni, ana legally act with as- snn.bl.es chosen by virtue of the king's writs, tr.ted by a former iror- eriior, 2.")0 |j 20 1- ^ kin?, 1\yi. their coiimissif ,3 cease by the death of (be ~ ; '*>■ ">'^''- ^^'^•"■'> ">• romov.d, their commissi^ does not determine; but the lioutcMM.t go, ernor or president of the council, m.ay exercise the powers of i ., 2.'. 4, 302 326, ' ~ determination of their patent does not deter nunc tl,o office of any person holding also by patent, nor any office. Iiu.d by the seal of the province, ib. 774 INDEX. Governora of plantations cannot legally issue writs for choosing now rep- resentatives, without dissolving the assembly, 271. stand in the same relation to the other branches of th-? legish-.tiurc, as the king to the other branches of tho parliau^eut, 30-2. . should transmit, in due time, laws for tho king's approbation, 318. cannot {by virtue of their commissions) cm- power the passing an act contrary to law, 37."). if they have authority by their ooramissious and instructions to erect courts, thoy may grant a commission of oyer and termiuer for trial of offences, 471. ^ clause, empowering them as chancellors, to issue commissions for the care and custody of tho persons and estates of idiots and lunatics, 4S1. - by virtue of a general power of erecting courts of justice, they may appoint a chief barOn of a court of exchequer, 481. Grc .is Kihs'k, 100. of tho office of auditor-general of the revenue of a colo iiy, good in law, and may be exercised by a sufficient deputy, IGO, of felon.s' goods, what passes by, 1G9. what passes by the word " forfeiture," 170, the circumstance of their having been w.rrants for mak- ing grant.^; many yc"" before the grants issued, is not sufficient to support grants, otherwise irregular and void, 174. - where grantees possess a greater quantity than they should hold bv tlio words of the grant, they are liable to a resurvey, and the remedy is by information, in the name of the attorney-general of tho province, in a cour* of equity there, to have the r.,al quantity Bet out, and the excess pared off for tho crown, 174. where grants are voidable, the remedy is by an inform ation of intrusion, i:i the proper courts of the province; and in case of error there, by appeal to the king in council, 173. of two baronies m Carolina, •' qur.rum sinauhe cnntin eat 12.000 acra% crrar void for '.ncertainty, I7t:.. , by the crown, of tho office of registrar of a provuioe, valid, 1/8. — of office, shouM be under tho great seal of tho colony, 247. INDEX. 775 ""hntssl^''"'' •"' '" """"="'''^' '""^^ -' -*-^ *° Newfound -— difference between this and the Museovy eompany, 546. Guernsey and Jasaj, no ^rit of extent out of the court of e.ehequer ^^anyprocc.. fr.n, the -ourt of king's bench, can be executed in, 89' courts tke'^.. "'""'' '"' "°"" '"''''' '' ""'■ P^°""^d-g - '^^ z~ ~::-: 'r^^'^' '^ ^^^^ ^*' '^- --> -%' ^ the king's orders in councii, ib. H. ,;orted in English bottoms Hemp, of the growth of Russia, ,n,,y {.^ from the Netherlands, 569. I. J. Jamacia, orig.nal constitution, and commissions of the different govern- ors of, on ..s con,uest from the crown of Spain, and acts pasLd by he governor and coune.i, and by the assembly of freeholders, and their validity and continuance, 2 1 7, ct scg. whether to be considered us a colony of English subject., or as a comiaercd countrj-, 231. ■ - whether the govern^, .f, has a right to issue writs ^^or electing bT^" 352' """■'' "''""^ ''"""^' '" ^ "^^^'■^•^ ^^- ^'^ — -_ the "act to provide an additional subsistence for her majes- ty B offices nd soldiers, and for other uses," objectionable, as in- trcnclaug on the queen's prerogative, 350. the " act for granting a revenue to his majesty, his heirs, and successor.; for th. support of ,he governor of this island, and for ^evis- mg and perpetuating the acts and laws thereof," objectionable, from ltd non-conformity to the instructions, 353. — - - act of foreclosure, passed by the assembly, not objected to aa domg no .nore than a court of en^uity would do, but the irterferenc; of the !eg.slature, m private matters, generally objectionable, 356 similar act, approved vndcr parucular circumstances, 385. rcvtaue acta, observations on, 397, 428 452. objectionstoan act,mak: ,c ,^11 tueir lawslndacts perpetual, 399. Y76 INDEX. Jamaica, " art for regulating foe,," objectionable in part, from itB un- rcasonabloncPf, lOr* ob.orvat.cs o», an^l objcctio.,-* tu ll,. acts of assembly pao.ed in 1757 r.s;,oetinL' the judges of the supreme cour* of lo;:i.lature„ the deftion of mr.Mbevs ..f tl,e assnublv. the .(uietiog. po^-scssio,;,. mu.I os- tablisi.ing reputo.l bouo.Iario.s, the appointin- coniinissione.s ot nisi ;,^,//.S and rnlarging the jurisdiction of justices of peace in uiatters ot ^^ebt and the establisluiig the credit of the island, lilO. L objeotion,s to a clause in an act of assembly, by ^vlli(•l' vesscU having biLck.s on board, amounting in number to above on.-fourth of the hands, ^.ere to be forfeited, and e.t.tes of non-resnUnt, were taxed higher than those of resident proriet .rs, IjI. ^ ^_ obj.-etion tD the acts relative to the removal .d' thr seat o. gov- ernment to Kingston, and an act to enhirge the jurisdict.ni of u^c m- ferior court of common plca.s, 1 otJ. kingnny op.-n ports of entry and clear.m.v in different parts- and direct otlb-.'rs to attend for i!ic business of muIi p.^rts. (.-.8. ^ circuit courts, cndd n-.t be established but by the act of tnc legislature of the island, or tnc parliament of (Jreat IJr.tam, I..0. ..nm.ni-ionrrs of >n.t pii,,^ not empowered, under the act passed in i:. 1. to h.dd a curt of n,^> i>nus wlthoul a .•ommis.-ion from hi.s ni.'iiesiv, !T - and'a commissioner so holding a court is liable to be prose-u ted by iuf"nnation,f'r misdemeanor, ^/y. mot. and LunoliiS. form of .boi: e, giving the governors of plantations, as chane.ll rs, ; er to i>sue eoum.issions a.reeabls io the usage and practice of Kngl and, 1-^1. ,1,0 .-haneellor. under the kingN waM'ant, has only po,v,rsof admmistratnmand management, and all .pi-Hons (exerpt between tlie Innat.. and his cmmiUtee) must be decided by a lull or action, i>'S. • , • ,i . 1 (,. ,,, tl,,. tiii^i- ot the ■*' eomini' witjiin tln' Iwportdtwn, IS account, d Iiniu tin' tun oi in. iii| l,„„ls ot the port. NMth in.ont to l:,nd ilsearg' iheie, .->:•.• l.ulKlino.t. injurs to trade puni.Hliabb by, .-.."m l„l,.nnari<,.. by'attornies general, act respecting, and ob.serrafon. on, ■i'j4, vy'> lie for injuries to trade, 5.">2. In^urunr. of s'.,,,s, proposed charter to a corporalo body for, obscrva- •tiou t on, 5yu to ooy. INDEX. 777 Intestat^^s ppr,.onal .state in England, and in the plantations, liability and apphcatiop of, Gi. ^ .Mulatto, in tl,o hnlKunas, dying inte.tato, withont relations 0..e nuncy of his .states go., to the crown, ,l,o other to hi. wife 1)0. ' eee titles A,ha>nsfrof„>>, and Af/nmns'.-afo> Jurl,,., empowered ,o i..„e thWr preeept to freeholders, where a iustico o the peaee has resigned, and fr,..hol,lers disol^yin,., „,ay be pun- ched ,n a .u.nn,ary way. by rub. ,d eonrt, w.,h fine and in.prisontnent. —-— - con.n.ission of. not rcvoeable without nn.b,.havior, 10 1 tractcd before the war, r,;v.\, J^rs^.^.,rr nre to aet aeeordln. ,o the laws of Kngland, 537, 53^. and oneiH'es a;:ai„.-;t thein are puni.shable by fiuc and inija-isonnient, .",37. '~~ ""■''■ ''""'''• '^ '•''^•rained to .■riniinal matters, mention- ca m their eomnii.-.sioii, 53^', .".l 1. AV./S-, his eeeJe.siastieal anthorilv abroad, I I. — bis prerogative ea„not be i:....,ned ir ,air./ir prose,j,a, in pros.H'utions f,r duties charged bj an act of a--"„il,lv, [ i| '^ ■> cannot h^ ln~ l-t,,.- pafnt make bonds assignable, or make things per.-ional de.seciiO • tli, I ir, 57u. where cmmiv.io,,. rs are apiminted for the trial ^f capital offences, he may instruct the governor to carry their sen' enee into cxVention, 514.' cannot enfnre,. ngulalions en„(,,,ry to act of parliament, 510. may prohibit his snljeets tVom gii,,;: o„. of the reahn vvi.hout li- cense, .')17. and may eonmiand tlieir return, ro„., restrain particular subjects from an nncontrolable iiberty of trading, Sl-J to 554. niay make laws in plant.dions, odiuiuted by hi.^ .subjects, with his Iieniiission, 582. cam,ot, by (re.ty. make his subjects liable t- oil,, r pnnishmcnls. •ban Ihey are s.il.jeet to by the laws ,,f t|,e eoi.iit.y. (323. hiwn of nnlKDis, i'jI2. Law», p«.sHti.l after the sale of a prov,„ee, but bcfort BOtlo* of such «al«, aro valid, but noi after notice, 24 4, 312. 780 INDEX. Legislature should not interfere in matters of private right without the greatest .,v-cssity, but sliould leave them tu the legal course of jus- tice, 357, 35S. Ziu-ntiatc Lawyers, ohjiotions to, 39'2. LicutciiantgoLermr, may bo indicted, and tried in the king's bench, under the act for punishing governors of plantations, for offences com- mitted in the plantations, '260, Oil. , whether subject to the penalty under the 7th and 8th Wil. III. u.r regulating abuses in the plantation trade, qiiare^ id. Lo"U(K>il, carriage of, fr()n\ Honduras to Venice, 5G3. Lomhiii, bishop of, is diocesan cf the O'lunies, 4-2. Luti'iliis: .-^ce title Idiot a. M. 31(111, Isle of, custom bouse ofliccr.s cannot, by niituc of their office, make seizures in ; but under the -'th Geo. I. they may, as common person.". mai;<' seizures f'ir inipnrlations tliere cuntrary to that act, '211. JMinnlaU tires, what machines or tiiols used in, are prohibited from ex- jiortation, ."I'JO. Marslnil is the proper othcer in the colonics, to whom warrauts should be d rcctcd, otj3. Murliii/ /wtr the military service of the ]iubli •. Mud the exigencies of the province, 2ti.'. Manjlaiui bill, ol'ser^ations on the clauses in, and objections to, 2G4. " .,( t for tiie establisiimciit td' reli-ious worship, according to the churrli ot Kn-land," valid, iiutwithstanding the king's death ; and shiidl- might execute lor llie lOlbs. of tobacco, established liy that act, for the maintenunee ul ministers, ^'J'.l to 320; rnntru, 320 to 3:i2. act of reeogTiition of (jueeu Anne, by the ussenddy of, deemed improper, 332. suspending act in force for eighteen months, or until thcque^n bLouIJ declare her pleasure, but could not be contniucd longer, 3 I'J MiiMiic/iuselt's Bay, establishment of a court of ei|iiiiy in. I'J*. . eon-irnetion of theii i-barter, n» to the time allowed to the king for the a].pro\,il or repeal of their acts, 338. Merc/uints abroad, refusing olfict -i necessary to suj'port the society, are debarred of all privileges, and of the proteetiou ( f the consul, 588. INDEX. 781 il/ jrm, with algior., observations on tho report relating to the trade Monoj^Jic., doubtful .b.ther stat. ., Jac. 1. c. 3. concerning, extends to the pKmtMtions. 211, 581. ~~ "'''"" *•'" "^' '"'^ "P"" tl'^t statute for seizing goods of tho African company, SSO, GSl. 3Iunlcr, pcr..o„.s guilty of, i„ tho colonics, n..y l,e tried under a co.a- mission issued into any county in England, 210. 'N. Natura. ,aion act of, by assembly of a province, effect of, 332. - '"ucli an act deemed projicr, 333. — - _ .vilhout license, will not discharge a naturalborn subject Ironi his allegiance, (J13. Naval s/orrs, importation of, from foreign parts, by „.„chants for the . use of the navy, prohibited by stat. M Oh. II. tW preventing frauds and re.nlatn,^^ aluises in tho customs, but such stores may bo import' ed in king's sbip.s, for the service of the nuvy, 5G7. -—-carriage of, by a nation i.; alliance with another, to the enemy of the latter, is ag-iinst the laws of nations, G2I. K(n-ii^„tio„, act of, liberty to aliens to trade is airainst, oGI. ,,rivilcges of fade propo.-^ed to be .-ranted' to the Spaniards ngainst, .")(i2. ' T>^o,ln,, „,• Spanish ships to the British islands, is again.st, 567, 573. I>n'utntl ahips: see 'ri;iil,\ Nrutralit,/, treaty of, with France: see Trndr. Nnrfhund/.nul, act for cncou-aging the Greenland (ishcrv, does not ex- • tend to, Slif). ^y ;.-»-.,.•, • , y -—-—trade, by 10 and 1 I Wm. [11. is n . trade, and noUaxa- ble for buililiiig a j)risi.n, .".37. - jiowcr.< of justices of peace there, il> . "I'Jcc'ions to articles between Great Hi , and France re- spocting the trade, as contrary to 10. •I'ld I! W,,, III 543 Nnn Jcrsc,,, construction of tho king's , „„,m.s..,on. and instn.Hion, to U Q;oyornor« of, with rcpect l„ hisj.ower .f par.Ion, and suspending prooeM, or stopping proceedings in cases ofhigh trenson or murder 201. ' — -rr.oMunendation of tho " act for ascertaining tho plaoei, of tiio sitling 01 the representatives to meet in general awembly," 4i5. -4 I ll 11 782 INDEX. Nev) Jersey, ohjoction to the acts for shortening lawsuits, enforcing the observaiifu of the ordinance for establishing fees, and foi- acknowledg- ing and rcooriiinnl. king's p.iwer of suiunioaiiig and proroguing of, in that re.spcct, 2 10. I'ulenls for new inventions, whether prerogative of granting extends to. the p'i;int;ilions doubtfnl, 2|4 . .,t ,,,niinon law, determine by the death e*" the king, 234. but by Stat. 'i. and S \V. III. e. 27, and 1 Anne, c. 8, s. 2, they continue for six montlis alter the king's death, unless suspen led by his Mieccssor, 235. the determination of one patent cannot determine another m- depem'.ent on it, 2.' I. JV;//^vv/r./'/"/ eharter, .-onstruction nf, as to tlie six month.s thereby nll.iw. d tn I'he erowp to r.-peal V. . . passed in the province, 3.M. acts pa.-.sed in 1723, for establishing a paper credit, and act exempting freeholders to the value of fifty acres from arrest, impro- per. 441. ^observations on acts passed in 1712, 13 14, and l.>, -142. Pepper, bluek, patent respeeting, 009. INDEX. 783 Piracy, persons suspected of, cannot be detained in custody 207 —-.Stat. 1 1 and 12 W. III. c. 7, foi oppression of, does not extend to ca.sos of murder, 21 i, 627. is felony by the civil law, 511. • and made so by stat. 28 Hen. V H. c. 15 io -by .^tat. 1 1 apd 12 W. HI. e. 7. specid ■commi.sion^^rs in the colonics may try piracies, 513. • -the goods of pirates are forfeited on their condemnation; and goods, piratically taken by them from others, belong to the erown, in case of non-claim by the right owners, 5 1 4, 5 1 5. —--construction of proclamation of pardon to pirates and robbers in the American sea.s, 529- -P="-donofpiratessaves;theirgoods from forfeiture.but goods pirati- cally taken may be recovered by the owners by action, 531. I lamatioiu : see the several title; in the index Piu.^ariona>.i culture of lands, is a condition in law, annexed to the title to lands in the colonies, 387. I'^uU^a tra,U; act of 7 and 8 W. III. for regulating abuses in, .x- tends only to governors and commanders iu chief, -^03.' Prcny-f/^u-f.- . I rrop„r,,ry p/.uUaUons, laws made in, sboul.l be subje.t to the king', approbation, 340. * ■ ■ ""ti should not exceed the charier, 200 rrussia, treaty of eommerce with, nl.M'rvati„i,s on, 325. ' ~ 11. Recof-nUwn, of a .sovereign act of. improper, 332. RerovcUs: see title rmrs. l{nnr,l,.i the crown where gnui.eea hold ,„„re bonis ,!,,.,„ ,he words "> <''« J-'rant warrant, where the grants are vni,lal,lo, 175 |7r, Repeal oi ..u, of assembly, takes place from its notification,' 292 " 784 INDEX. Repeal time allowed to the crown, to repeal laws, is to be counted from the period of their delivery to the privy council, 337. Representation, where the right of, is fouiuled on instructions fiom the crown, it may from time to time be altered in the same manner, if there have been no act of assembly approved by the crown to the con- trary, 269, 273, 275. i?r/;mrtAwillnotlie, where there is no denial of justice, nor a delay amounting to a denial, 316. .jvlien to be granted, and what steps should be taken before they are granted, 618, 019, G'20. Romish priests, laws of England in force in the plantations against, 43, 14. Rviiia Company, their privileges of importation, against the navigation art and the charter of the Kast India company, 5*^7. s. Scotchman is an Englishman within the act for regulating abuses in the plaiitatiun trade, 64 4. Seal Great, of a colony, all grants of offices, and acts of ths crown should be under, '.^47, 248. but t!ie governor's private seal may be used, if it bo the custom, ih. Seamen, the king may, by proclamation, under the great seal command them to return if employed in a foreign service, and prohibit them from going into a frcign service, 561. Seamen, cast away, duty lor relief of, and observations on the distribu- tion and cva.-^ion thereof, 588. • Sulrjccts English, carry with Ihcm the laws of England whereever they form colonics and receive the king's protection, 20r,, 517. such colonies cannot be taxed, but by the parliaments of (Jreat Britain, or with the consent of some representative body of the people of tlie island, 'iol. -may be prohibited from going out of the realm without license, 231, 2.57. -and may, except they are merchants, be recalled by letters of privy seal, 554. 560 -and if they do not return, they forf( it the rents ol their lands for life, .and all their personal estate, 560, I'll'V may be restrained by the crown from liberty of trading. INDEX. 785 and punishable for a breach of the regulations of the crown, 5-^% to 554 and 582, to G46. Suiyects, English, how they may become aliens, 666. Surrender, by proprietora and governors to the crown, of their powers and privileges, 67, 69, 72. method of making such surrender, 71. after a surrender, by trustees of a charter for establishing a colony, the king shiuld issue • claraation under the great seal, m order to authorize cllicers to co. nue in the exercise of their offices until a new government is established, 198. Suspension of rights by conquest of land, revival of those rights on a recon(|uest, 131. T. Taxc.tion of colonies, king's power of, 158 ; and see title King. Taxes should be granted to the king, his heirs and successors, 360. Temporary laws in the plantations, whereby the king's prerogative was evaded, to hi.s governors in plantations not granted in property, and in proprietary p.autations by an act of the parliament of Great Britain 338. Tenure of lands in Virginia, being free and common socage, as of the manor of Kast (Jreenwich, where any person dies without heirs, his lands escheat to the crown, 142. but escheats on attainder of treason belong to the crown, as a prerogative royal, ih. Title to lands in the colonies must be supported by an actual culture and plantation of it, 387. Trade is under the control, management, and direction of the king, 549. injuries to it, punishable by indictment and information, 551. carried on from France to Portugal by unlicensed English vessel*", against tic stat. 3d uiul Itli .\rino, 571. in neutral bhi|>s, with an enemy's country, prohibited, 570. license to trade, with a prohibition to Others, is good in law, 582. Treason eso'neats, on atlainder of: .see title Escheats. ' foreign may be tried in the colonies by virtue of a special ecu- mission from the crown, 5,i9. Treasure trove in the Bahatuas the property of the crown, \o\. 100 I 786 INDEX. Treaties, subjects breaking and taking cammissions from a foreign pow- er to cruize against tlie king's allies, arc guilty of an offence against the law of nations, and by the civil law, of the " crimen loesa nui- jestatis," and by the law of England are punishable by fine and im- prisonment, G17, G18. , French ships trading in breach of treaties, in British planta- tions, subject to seiznre and confiscation, under the treaty of neutrali- ty in 108(5, and vice versa, 627. but British ships not liable to confiscation in England, for breach of the trnaty, GiS. that treaty in force in 175G, C29, et seq. are compacts, superseding th*^ law of nations, 030. , gutions in, may be entered into by implication, G3I. essence of a definitive treaty of peace, that the commercial and friendly intercourse of the contracting powers is replaced in its for- mer state, 633. u. Union icith Scntlajid, goods imported into London after, seized as for- feited, and suggestion of mode of proceeding for discharging the seizure, .'iS3. United States, whether persons born in thu king's allegiance, and rcraain- iug in the United States, after the acknowledgment of their indepen- dence, were aliens or subjects, from the period of that ackncwletlg- ment, G4S Usii,s;c long uniutcrrupteJ, of a law, imports ttinVonsent of the proprie- tor and people of a colony, that it should be in force there, 208, 228. Usage, by stat. 25 Geo. II. e. G. s. 10. it was considered sufficient to have extended an act to the colonies, li. 20'j. V. Vice- ' ' ^■" '"'* Tiatent, is receiver of the dues and per-iuisite.s of ,. • •«•.. ind ihey are restrained by the Virgnna, m v ... prescribed by the governor's comuushiou •_- ed, 344. INDEX. iTQiT VirgiKia, construction of the clauses in the act for laying a d,,,y oa L.iuors and respecting the appropriation and application of ^iOo/ per auum, fur the r.lief ufthc college of William and M,.rv 403 ' — - obs.>rvatiocs upon acts of the assembly, pa.sed b 1700, 1701 -- objections to the acts for the better govonnnent of convicts ..ported, and f„. the fnrther preventing the clandestine transpor a^a f ersons out .f the colony, that they amounted to a prohibUlon of convicts ben.g imported into the province -.i3. ■ act passed in 1723 objectionable, f., n ts preventing free ne- groes, mulattoes, and Indians, from voting at elections, 439. War is a ton.porary exertion of force, to decide a point of interest. whicli no human tribunal can determine, G33. Wans puuitcd, importation of, prohibited by 3 Edward IV. c. 4, Wa^jants for issuing grant.s not sufficient to support those grant, if otlierwise irregub.r and void, 173. ' - -^to disseize a person of his freehold, without trial, contrary to Was,c and unimproved land., where persons under grants from the crown have possessed, it is hardly po.ssible for a stale title to prevail against them, 10.3. i"evaii W..t Iud,rs, whether the general assemblies nf the provinces *hey are EMand,',.'!'' """''" ''"'"' ''' ""' ''''''''' '^ 1-^'— ts of nW. no salvage duty or gratification due on ; and nothing but rea- sonablo compnisation for labor in .saving carg,., G->r,. •— . cargo ot, in the nature of pledge 7or the frieght, ii. Zu^lT"'"' " ""'' "'"" " '"'"" " "■"'^^^ ^'^- ^ grant in fte TT", '''"'■'* ""' ''■<■■ "^ '^""'-^ i" '^ '■"l"»y, on the settlement of Which the statutes which gave the writ were put in practice, i6.