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as an Englishman within the Act, every Scotchman being a naturalborn subject.
June 4, 1701. John Hawles.
(2.) Opinions of Mr. Reeve (afterwards Chief Justice of the Common Pleas), and Mr. Lutwyche, King's Counsel, on the effect of the Demise of the Crown on a Colonial Act granting a salary to the Governor of a Colony. 1727.
I am of opinion that this Act is not determined by the demise of his Majesty King George, but will remain in force as long as Mr. Worsley continues Governor of Barbadoes, and shall personally reside in the island. It is observable that the tax, &c., is granted to bis Majesty, his heirs and successors, during the continuance of the Act: it is limited to continue for so long time as Mr. Worsley shall continue to be his Majesty's Captain-General, &c. Yet, I conceive these words will have the same construction as if it had been limited to continue so long as Mr. Worsley should be the King's Captain-General; and as the King, in law, never dies, I conceive the demise of King George I. will not be a determination of this Act.
January 15,1727. Thomas Reeve.
I am of opinion that upon the demise of his late Majesty, the Act for granting the £6000 per annum did not determine; for I think it is clear that the Governor's commission continued for the space of six months after the death of the King, by virtue of an Act of Parliament in Queen Anne's reign, unless the commission was superseded in the meantime; and if the commission was determined by ending at the six months, I am of opinion that the Act had determined also, though the Governor had been appointed afterwards, because he once ceased to be Governor under any commission. But if the fact was, that within the six months he had a new commission, it is doubtful whether his continuing Governor without intermission will not be sufficient to entitle him to the £6000 per annum by the Act; and upon consideration of these
three clauses, I am inclinable to think that it will entitle him so long as he remains Governor, and continues without intermission; but perhaps it might be made plainer by seeing the whole Act.
February 1, 1728. T. Lutwyche.
(3.) Joint Opinion of the Attorney and Solicitor General, Sir Thomas Trevor and Sir John Hawles, on the determination of a Governor's Commission. 1700.
To the Right Honourable the Lords Commissioners of Trade and
May It Please Your Lorlships,—Upon perusal of their Excellencies the Lords Justices' letter to the President and Council of Nevis, dated the 29th September, 1698, and of a copy of a commission granted by his Majesty to Colonel Fox, dated the 15th November, 1699, we are humbly of opinion, that the powers and authorities given by the Lords Justices to the President and Council of Nevis were determined by the commission to Colonel Fox, upon the arrival of Colonel Fox there and publication of his commission, and we conceive be might upon his coming there before Colonel Codrington, by virtue of his commission, dispossess the President and Council, and assume to himself that government until the arrival of Colonel Codrington there.
Thomas Trevor. August 9, 1700. John Hawles.
(4.) Opinion of Mr. West (afterwards Lord Chancellor of Ireland), as to whether a Governor can vote as a Councillor. 1725.
To the Right Honourable the Lords Commissioners for Trade and
My Lords,—In obedience to your Lordships' commands, signified to me by letter from Mr. Popple, dated the 24th day of November last, I have considered the following quaere, whether a Governor can vote, as a Councillor, in the passing of bills, when the Council sit in their legislative capacity?
Upon consideration of which, and of the Governor's commission and instructions, I am of opinion that a Governor cannot, by law, vote as a Councillor in the passing of bills, when the Council sit in their legislative capacity.
January 8,1724-5. Richard West.
(5.) Opinion of the Attorney General, Sir John Willes, on the right of the Proprietor of Maryland to appoint to Offices under the King's Charter. 1737.
Quaere 1. Whether by the Charter of Maryland, the Lord Proprietor has not a right to the nomination of all officers in general, civil as well as military?
Answer. I am of opinion that by the Charter of Maryland, the Lord Proprietor has a right to nominate and appoint all officers in general, as well civil as military.
Qusere 2. Whether there is anything particular in the nature of the office of Treasurer, of either shore, to exempt it from the said nomination?
Answer. It does not appear to me, that there is anything so particular in the nature of the office of Treasurer, of either shore, as to take the right of nomination to this office from the Lord Proprietor, and to give it to any other persons.
Qusere 3. Whether a few precedents in this case, of a Treasurer being appointed by tripartite concurrence of both Houses of Assembly and the Governor, can or do overthrow his Lordship's right?
Answer. All the precedents, except one, being between 1692 and 1716, when my Lord Baltimore was out of possession, I am of opinion that they will not overthrow his Lordship's right, founded upon such plain words in the Charter.
(Qusere 4. Whether the precedents, hereunto annexed, do divest the Lord Proprietor of his right of nomination to the office of Treasurer or Treasurers, so nominated, they giving the security the law directs?
Answer. The Treasurer or Treasurers, when nominated by the
Proprietor, must give such security as the law directs. To the other part of this qusere I have given an answer already.
January 22, 1736-7. J. Willes.
(6.) Joint Opinion of the Attorney and Solicitor General, Sir William Gareow and Sir Samuel Siiepherd, as to the devolution of the authority of Governor of a Colony.
Lincoln's Inn, November 24, 1814.
My Lord,—We have had the honour to receive your Lordship's letter of yesterday's date, stating that his Royal Highness the Prince Regent, having judged it expedient to direct LieutenantGeneral Sir G. Prevost, his Majesty's Captain-General and Governor-in-Chief of the provinces of Upper and Lower Canada, to deliver over all the civil and military powers with which he may be invested, to the senior General Officer for the time being in Canada; and doubts having been entertained whether, consistently with the terms of his Majesty's commission under the great seal, bearing date the 21st day of October, 1811, he can comply with such instruction, so long as he may remain in the province, in which the severity of the season may for a length of time detain him, your Lordship is pleased to transmit to us the extract of your despatch to Sir G. Prevost, which conveys the instruction before mentioned, together with the copy of Sir G. Prevost's commission and other papers, and to desire that we will take the same into our consideration, and report to your Lordship, for the information of his Royal Highness the Prince Regent, our opinion upon the point in question, and also whether any Act short of an absolute and entire revocation of the commission can, during the presence of Sir G. Prevost in the province, suspend the powers with which he is invested by the said commission.
We have accordingly considered the same, and have the honour to report to your Lordship, that we observe by the commission to which your Lordship has been pleased to refer us, that his Majesty directed the Governor, in the case of his absence from either of the provinces of Upper Canada and Lower Canada, to deliver the seal of the said provinces respectively into the charge of the LieutenantGovernor or person administering the government there, until his Majesty should think fit to authorize him, by instrument under his royal sign-manual, to commit the custody thereof to such person as might be appointed by his Majesty for that purpose. It does not appear that in any case but that of absence the authority of the Governor could be devolved on any other person; we beg therefore very humbly to submit as our opinion, that the LieutenantGeneral and Governor cannot, consistently with the terms of his commission, deliver over his civil and military powers to any other person during his personal residence within the local limits of his Government; and we further beg leave to submit as our opinion, that no act short of an absolute and entire revocation of the commission can, during the presence of Sir G. Prevost in the provinces, suspend the powers with which he is invested by the said com
(7.) Case and Joint Opinion of the Attorney and Solicitor General, Sir J. Scarlett and Sir Edward B. Sugden, as to power of Governor to revoke assignment of a Convict.
December 24, 1829.
Case.—The Secretary of State is desirous to be advised whether, under the 9th section of 9 Geo. 4, c. 83, a Governor can revoke the assignment of a convict of whose sentence it is not intended to grant any remission, general or partial.
Opinion.—We are of opinion that under the 9th section of 9 Geo. 4, c. 83, a Governor can revoke the assignment of a convict of whose sentence it is not intended to grant any remission, and we think that there is nothing either in the context or the apparent policy of the Act which militates against this construction.
The Right Hon. Earl of Bathurst, &c. &c. &c.