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2. What powers a court so established will have? whether they will extend as far as the Court of Exchequer in England; and whether the proceedings therein should be the same as in England? —We are of opinion that his Majesty may erect a Court of Exchequer in South Carolina, with the same powers as the Court of Exchequer here has: we think the proceedings in such new erected court should be agreeably, as near as may be, to the practice here.
3. Whether the Governor, by his commission or instructions, be sufficiently empowered to appoint a chief baron; and in what manner such chief baron should be appointed?—We think the general power of erecting courts of justice, as given by the commission to Mr. Horsey, would be sufficient to authorize him to appoint a chief baron; but as by the 39th instruction the Crown seems to reserve to itself the consideration, whether a standing Court of Exchequer should be erected or not, and as doubts have arose in the province touching the authority of the present Chief Baron, we conceive it is not advisable to rest the authority of erecting such court and appointing the chief baron on the present commission and instructions, but yet it would be more proper (if his Majesty shall be so pleased), by a special commission to his Governor, to authorize the establishment of such a court, and the constitution of the chief baron and other officers of it.
June 12, 1738. D. Ryder.
(22.) Opinion of the Attorney General, Sir Dudley Ryder, on the King's power to erect Courts of Justice in Newfoundland. 1749.
To His Grace the Duke of Bedford. May It Please Your Grace,—In obedience to your Grace's commands, signified to me by your Grace's letter of the 23rd instant, setting forth that your Grace had laid before the King a letter which you had received from Captain Rodney, late Governor of Newfoundland, wherein he desires, at the request of the principal inhabitants of that island, that your Grace would move his Majesty in their behalf, that power 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 consider of the request of the said inhabitants, and report to your Grace my opinion, for his Majesty's information, in what manner I think his Majesty may comply with their request, consistent with the 13th article of the Act of Parliament of the 10th and 11th of the reign of the late King William, for the trial of persons guilty of capital crimes in the said island, in any shire or county in England, a copy of which your Grace was pleased to inclose: I have perused and considered the Act of the 10th and 11th of King "William III. and the enclosed extract from Captain Rodney's letter, and am of opinion that his Majesty has a prerogative and right to erect courts of justice in Newfoundland for the trial and punishment of all sorts of crimes committed there, and that the Act of 10th and 11th 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 for the trial of capital and other crimes as his Majesty shall, in his royal wisdom, think proper.
I would only take the liberty of informing your grace, that about the year 1738, this matter was taken into consideration by the Board of Trade, in pursuance, I believe, of some reference to them from his Majesty, or a Committee of Council, and the Board did make a report concerning it, after having taken the opinion of myself, and his Honour the present Master of the Rolls, the then Attorney and Solicitor General; in which report they proposed inserting into the commission to the next Governor of Newfoundland, a clause to empower the Governor to erect a court of justice there, to the same effect as is inserted into the commission to other governors of his Majesty's American commission governments; but that clause, coming afterwards to be considered in Council, was rejected, as I have been informed.
January 30, 1749. D. Ryder.
(23.) Opinion of the Attorney General, Sir Dudley Ryder, that the King could not grant power to establish a Criminal Court at Newfoundland, hut under the Great Seal. 1750.
To the Right Hon. the Lords Commissioners for Trade and
My Lords,—I have perused and considered the several papers your Lordships were pleased to transmit to me, with Mr. Hill's letter of the 26th instant, desiring my opinion, whether a power to take cognizance of capital crimes in Newfoundland can be granted to the Governor of that country by instructions only, signed by his Majesty in Council, or whether it ought to be inserted in his commission under the great seal; and whether, if such power must be inserted in the commission, the words proposed for that purpose in the year 1738, and which were sent me, are proper: I am of opinion, such power cannot be granted by instruction, or any otherwise than under the great seal, and, therefore, if thought advisable to be granted at all, ought to be inserted in the Governor's commission; but the manner of his exercising such power may be prescribed and limited by instructions, for any breach of which he will be answerable to his Majesty.
The form of words in the inclosed extract from the draft of a commission in 1738, is, I think, proper for the purpose, excepting that neither the power of trying, nor that of pardoning treasons, appear to me fit to be intrusted to the Governor, or a court to be erected by him.
March 27, 1750. D. Ryder.
(24.) Joint Opinion of the Attorney and Solicitor General, Sir James Scarlett and Sir N. C. Tindal, on the power of the Crown to create the office of Master of the Bolls in Canada. 1827.
To the Right Hon. William Huskisson, &c. Sir,—We have had the honour of receiving from Lord Goderich, a copy of the commission under the great seal, appointing the Earl of Dalhousie Governor of the provinces of Upper and Lower Canada, the draft of a proposed patent for the appointment of a Master of the Rolls in the province of Upper Canada, and a copy of the patent of Master of the Rolls in England, accompanied by a letter from his Lordship, in which—after pointing out to our attentention that the law of England has been generally adopted in Upper Canada, that the custody of the seal intrusted to a colonial gOTernor has already been considered to invest him with the office of chancellor, but that the governors of Upper Canada have always declined assuming the judicial functions of chancellor, that the want of a court authorized to enforce the execution of trusts, and to protect the property of infants, has been productive of great inconvenience, of which representations have been made to his Majesty's Government, although no attempt has been made to institute a court of equitable jurisdiction by any statute of the Governor, Council, aud Assembly, for supplying which defect it had been suggested, that the most appropriate remedy would be the erection of the office of Master of the Rolls—his Lordship desires us to take the proposed draft of a patent into our consideration, and to report for his Majesty's information whether his Majesty can, by letters patent under the great seal, or in any other manner, lawfully create the Master of the Rolls in Upper Canada, and whether such letters patent could properly be passed in the form suggested, and to make such alterations in the draft as may appear to us to be necessary. which ought to be specified in the law which authorized, or in the patent which created it; and we therefore humbly submit, that in order to prevent any misconception of the authority and jurisdiction of the office, by reason of analogies drawn from the name, it would be more expedient, if consistent with his Majesty's pleasure, that the intended equity judge should be called Viee-Chancellor to the Governor, and make his deputy for the desired purpose to which it is supposed the Governor's authority may be usefully employed in a court of equity. But in order to prevent doubts on the subject we would recommend this to be done by the aid of Parliament or of the local legislature.
In compliance with his Lordship's desire, we have duly considered the several matters referred to us, and have now the honour to report, for his Majesty's information, that the result of our investigation leaves us in considerable doubt, whether his Majesty lawfully can, by letters patent under the great seal, or in any other manner without the intervention of Parliament, or of the local legislature, create any new judge in equity, by whatsoever name he may be called, in Upper Canada; that the office of Master of the Rolls in England is a very ancient office, deriving its authority and jurisdiction from usage, and the various relations by which that office is connected with the general establishment of the courts both of equity and common law; that the same office and the same relations, much less the same fees and emoluments, could not be transferred to Canada by the mere creation of an office of that name, which would, nevertheless, be there a new office, the functions of
We therefore beg permission to return the draft of the proposed patent, and to defer any alterations it may require, until his Majesty's pleasure be further known to us.
We take the liberty of submitting further to your con uderation, as connected with this subject, whether, with a view to avoid the clashing of jurisdictions and the dissensions which may pos." ly arise upon the new establishment of distinct courts of equal power, but proceeding by different rules, it might not be expedient, instead of creating a distinct court of equity, to add to the judges who constitute the present common law court in that province, the proposed equity lawyer in the character of a puisne judge, and to give to the court so constituted, by the authority of Parliament, or of the local legislature, so much of an equitable jurisdiction as upon due consideration may be thought necessary or useful to the province, to be exercised as in the Court of Exchequer in England, in the same tribunal, and by the same judges who administer the common law.
September 25,1827. N. C. Tindal.
NOTES TO CHAPTER V.
(1) Lands in In 1852 an Act (15 & 16 Vict. c. 39) was passed to remove doubts as the Colonies, to the lands and casual revenues of the Crown in the colonies and foreign possessions of her Majesty. It recites that from the time of the passing of the Act 1 Will. 4, c. 25, the lands of the Crown in the colonies had been granted and disposed of, and the moneys arising therefrom had been appropriated by the authority of the Crown and of the legislature of the several colonies, as if the said Act and another