appointed by the King, for the speedy trial, conviction, or deliverance of such offenders; and that, in such case, no challenge for the shire or hundred shall be allowed: which statute, though it be repealed, by the 1st & 2nd P. and M., as to treason, yet, it is apprehended, it is not as to murder.

Quære 1. Does not this statute make such an alteration in the common law, and so enlarge the King's prerogative as to trials in murder, as well in his colonies as in his kingdom of England, that he may, if he thinks fit, appoint any man (charged with that offence in of his colonies, and examined as the Act directs) to be tried in any place there, other than the place or island where the offence was committed?

any

Quære 2. If such power be in the King, can that power be executed by his Governor in St. Christopher's, who is expressly empowered by his Majesty's commission to erect courts of justice, and issue commissions of oyer and terminer, within this government, as he shall think fit; and can a commission, in the King's name, under the seal of the Leeward Islands, and an examination before the King's Council there (who are actually nominated by the King, and, by his instructions, called his Council), be taken to be such a commission and examination as is meant by, or comprehended within, the words or designs of this Act?

Quære 3. If this commission in this case be not warranted by the statute, it is not, nevertheless, warranted by the King's prerogative in his colonies, and well supported by the powers supra, which his Majesty, by his commission, has given to the Governor of St. Christopher's; and, upon the whole matter, is the trial and conviction of White legal or not?

To Quære 1. We are of opinion that the statute of 33 Henry 8, cap. 23, does not extend to the plantations, and that there is no foundation, from that Act of Parliament, to grant special commissions of oyer and terminer, for trial of offences arising out of the colony within which such commission is granted.

To Quare 2. This question depends upon the former, and is answered under that.

To Quare 3. The legality of the commission upon which White was tried will depend upon the constitution of the government of the Leeward Islands, and the jurisdiction of the courts of judica

ture in St. Christopher's, which is not sufficiently stated, so as to enable us to give any certain opinion thereupon. If the island of Spanish Town is dependent, as to its government, on St. Christopher's, and crimes committed in the former can be, and have usually been, tried by commissioners of oyer and terminer in the latter, then we conceive this commission was well warranted, and the trial and conviction were legal, in case there be no other objection. against them; but if crimes committed in Spanish Town cannot, by the laws of that government, be so tried in St. Christopher's, then this commission, and the proceedings thereupon, were against law; and there being no settled courts of justice in Spanish Town, we apprehend the safest method of bringing White to justice is to send him over into England to be examined before the Privy Council, according to the statute of 33 Henry 8, whereupon a special commission of oyer and terminer may be issued under the Great Seal of Great Britain, for trying him pursuant to the directions of that Act; but as that may be attended with great trouble, if the Governor has authority, by his commission and instructions, to erect courts and constitute officers of justice in Spanish Town, and there are sufficient inhabitants within that island qualified to serve upon the grand and petty jury, then, we apprehend, the Governor may grant a commission of oyer and terminer, and appoint proper officers for summoning juries, and other purposes, in order to the trying of the prisoner within Spanish Town.

December 18, 1725.

P. YORKE.

C. WEARG.

(21.) JOINT OPINION of the Attorney and Solicitor General, SIR DUDLEY RYDER and SIR THOMAS STRANGE, on the erection of a Court of Exchequer in the Colonies. 1738.

Quære 1. Whether the Crown has by the prerogative a power to erect a Court of Exchequer in South Carolina; and in what manner such court should be erected ?-We are of opinion that the Crown has, by the prerogative, power to erect a Court of Exchequer in South Carolina, which may be done by letters patent under the seal of the province, by virtue of his Majesty's commission to the Governor for that purpose.

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.

J. STRANGE.

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, but under the Great Seal.

1750.

To the Right Hon. the Lords Commissioners for Trade and Plantations.

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 Rolls 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