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(1.) Opinion of Lord Chief Justice Holt, that the King might appoint a Governor of Maryland, in a case of necessity, notwithstanding an existing Charter by which Lord Baltimore was appointed Governor. 1690 (i).
To the Marquis of Carmarthen, President of the Council. My Lord,—I think it had been better if an inquisition had been taken, and the forfeiture committed by the Lord Baltimore had been therein found, before any grant be made to a new Governor; yet, since there is none, and it being in a case of necessity, I think the King may, by his commission, constitute a Governor, whose authority will be legal, though he must be responsible to Lord Baltimore for the profits (2). If an agreement can be made with Lord Baltimore, it will be convenient and easy for the Governor that the King shall appoint. An inquisition may at any time be taken, if the forfeiture be not pardoned, of which there is some doubt.
Serjeants' Inn, June 3, 1690. J. Holt.
(1) The Privy Council, on the 21st of August, 1690, issued an order, " That the Attorney General do forthwith proceed, by scire facias, against the charter of Lord Baltimore, the Proprietor of Maryland, in order to vacate the same." On the 5th of February, 1690-1, Lord Baltimore was heard, by counsel, against the King's appointment of a Governor for Maryland. On the 12th of February, 1690-1, there issued an Order of Council that the draft by a commission, which had been prepared by the Attorney General and approved by Lord Chief Justice Holt, constituting Lionel Copley Governor-in-Chief of Maryland, be transmitted to Lord Sydney, the Secretary of State, for the Queen's signature: note in "Chalmers's Opinions," i. 29.
(2) This cannot be considered sound law. The Crown had no power to rexoke Lord Baltimore's charter, except upon or after an inquisition.
(2.) Joint Opinion of the Attorney and Solicitor General, Sir Edward Northey and Sir Simon Harcourt, that the Queen may resume a Government under a Royal Charter that had been abused.
May It Please Your Majesty,—In humble obedience to your Majesty's Order in Council, we have considered of the annexed extract of a representation from the Lords Commissioners of Trade and Plantations, upon letters received from Colonel Dudley, your Majesty s Governor of Massachusetts Bay and New Hampshire, complaining of great inconveniences happening to him in that government, from disorders in Rhode Island, for want of good government there; and also upon letters received from the Lord Cornbury, your Majesty's Governor of New York, complaining of like inconveniences from disorders in the colony of Connecticut, that and Rhode Island being charter Governments; and also of the report of the Attorney and Solicitor General of the late King William and Queen Mary, made in July, 1694: and we do concur with them in their opinions therein mentioned, that upon an extraordinary exigency happening through the default or neglect of a proprietor, or of those appointed by him, or their inability to protect or defend the province under their government, and the inhabitants thereof, in times of war or imminent danger, your Majesty may constitute a Governor of such province or colony, as well for the civil as military part of government, and for the protection and preservation thereof, and of your Majesty's subjects there, with this addition only, that as to the civil government, such Governor is not to alter any of the rules of propriety, or methods of proceedings in civil causes, established pursuant to the charters granted, whereby the proprietors of those colonies are incorporated; on perusal of which charters, we do not find any clauses that can exclude your Majesty (who has a right to govern all your subjects) from naming a Governor on your Majesty's behalf for those colonies at all times.
(3.) Opinion of the Attorney General, Sir Edward Northey, on the Queen's prerogative to receive a surrender of tlie Pennsylvania Charter. 1712.
To the Right Hon. Robert, Earl of Oxford and Earl Mortimer, Lord High Treasurer of Great Britain.
May It Tlease Your Lordship,—In obedience to your Lordship's commands, signified to me by Mr. Harley, I have considered the report of the Lords Commissioners of Trade and Plantations u:x>n the memorial of William Penn, Esq., Proprietor and Governor of Pennsylvania, proposing to surrender to her Majesty the powers of government wherewith he is invested; and I have also perused the grant of that government to him by King Charles II., with other deeds relating to Mr. Penn's title thereto, and to the government of the tract of land on Delaware River and Bay, now called the town or colony of Newcastle, alias Delaware, and he has made out to me his title thereto; and, according to your Lordship's commands, I have prepared a draft of a surrender of those powers from Mr. Penn and others, in whom the legal estate is, under him, to her Majesty, reserving to Mr. Penn his right to the soil of those colonies. In the letters patent of King Charles II. there are granted to Mr. Penn all mines of gold and silver in Pennsylvania, which, he says, he cannot surrender to the Crown, having made several grants thereof to several people which are not in his power, and therefore the surrender of them is not in the draft prepared, although, if it be insisted on, he may surrender and assign what is not granted.
There is, likewise, an instrument prepared for her Majesty's accepting the said surrender; and in it Mr. Penn is an humble suitor to her Majesty, that she would be pleased thereby to declare that she will take the people of his persuasion, as well as the other inhabitants of those colonies, in her Majesty's protection. I do not observe that there is any provision made for the support of the government there, by any act of Assembly or otherwise, without which the government will be a charge to her Majesty; but the Council of Trade and Plantations, in their report, have represented that Mr. Penn affirms he does not doubt but the Assembly will readily make provision for the same, and he acquaints me that the fines and forfeitures there, which have been and may be applied hereto, are considerable.
February 25, 1711-12. Edw. Northey.
(4.) Case and Opinion of the Attorney General, Sir Edward Northey, on the surrender of the Bahama Charter. 1717.
Whitehall, December 10, 1717.
Sir,—The Lords Commissioners for Trade and Plantations 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 Inlands, whereof two are minors, the other four have executed a deed of surrender of their right of government to his Majesty, and to desire yonr immediate opinion whether a surrender executed by four out of six, as aforesaid, be valid and effectual.
Opinimx.—I am of opinion that a surrender by four where six are seised can only convey and extinguish thereby four parts in six of what the parties enjoyed. However, his Majesty being entitled under four, to four parts of the government, which is entire, he may execute the whole. And I do not know that the other two can be co-partners with his Majesty in governing, for which reason, and that there might not be an extinguishment by surrender, I apprehend, as this case is, a grant to the Crown of the four parts might be more proper.
December 10, 1717. Edw. Northey.
(o.) Joint Opinion of the Attorney and Solicitor General, Sir Frederick Pollock and Sir William Follett, on a proposed surrender of the Charter of the University of Kings College, in New Brunswick, and the grant of an amended Charter.
Temple, January 10, 1842.
My Lord,—On the 11th of December last, we received a letter from Mr. Stephen, wherein he was pleased to state that the Council of the University of King's College, at Fredericton, in the province of New Brunswick, are desirous of obtaining a modification of the charter from the Crown, under which it is incorporated, with a view to render the institution more acceptable to the inhabitants, and thereby to increase its usefulness.
That Her Majesty's government are willing to consent to the modification, and, as a preliminary to granting an amended charter, require the surrender of that now held by the college.
Doubts, however, are entertained by Her Majesty's law officers in the province as to the competency of the corporation to make such surrender, and also as to the mode in which the change desired can be lawfully effected.
Mr. Stephen further stated he had been directed by your Lordship to transmit to us a copy of the college charter, together with a copy of the opinion delivered by the Attorney and Solicitor General of New Brunswick; and he requested that we would take the subject into our consideration, and report to your Lordship our opinion whether it is competent to the corporation of the college to surrender their present charter and accept a new one; if not, in what manner the desired alteration in the constitution of the college can be lawfully effected.
In obedience to your Lordship's commands, we have perused the papers mentioned in Mr. Stephen's letter, and have fully considered the whole matter referred to us; and we have now the honour to report to your Lordship, that we do not think it necessary, in order to effect the intended alterations in the constitution of the college, that its present charter should be surrendered as a preliminary to the granting of an amended charter; and we think there are objections to such a course. We would recommend that a new charter should be granted to the college, containing the proposed modifications of the existing charter, and this new charter, if accepted by the college, will become the governing one of the corporation. We think that this new charter should recite the grant of the former, and that the Crown, considering it for the advantage of the institution, has thought fit to grant another charter to the college, and the charter should then set out all the regulations which it may be deemed expedient to provide for the government of the institution.
To the Right Hon. Lord Stanley, Fred. Pollock.
•fee. &C. &C. W. W. FOLLETT.