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As to the first, disobedience to the King's lawful commands is, by the common law, an high misprision and contempt, punishable, upon indictment or information, by fine and imprisonment; and that the King may lawfully command the return of his subject when out of the realm, under the penalty of seizing his lands till he return, or may command any particular subject to remain within the realm, by his writ of ne exeat regnum, or all, or any part of his subjects by proclamation, has been long and often recognized as a part of the common law. Fitzherbert, N. B. fol. 85, C. says, “ that the King, by his proclamation, may inhibit his subjects that they go not beyond the seas, or out of the realm, without license, and that without sending any writ or commandment unto his subjects; for perhaps he cannot find his subject, 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 allegiance; the departing having been before prohibition or restraint by proclamation, or writ of ne exeat awarded by the Queen; by which it is plainly implied that departing after proclamation would have been a contempt: and even so early as the reign of Edward I. several persons were impleaded for having acted contrary to a legal proclamation. Lord Hale, in his treatise De Portibus 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, prohibit a person particularly from going beyond sea without license, and this may be done at this day ; thirdly, at common law, in time of public danger, and pro hac vice, there might be a general inhibition by proclamation, restraining any from going beyond sea without license. From another passage in a MS. of the same writer, he shows what kind of public danger he adverts to; for speaking of the general restraint, as distinguished from restraining an individual, he says, “This is clearly that restraint intended by the statute of Magna Charta, nisi publici antea prohibit facient (not as if it must be a prohibition by Act of Parliament), and this appears by the constant practice, especially in time of danger, when a free passage might either weaken the strength or disclose the secrets of the realm.” And after citing many instances, he adds, “and this prohibition the King may take off generally or particularly, as he pleaseth.”
From these authorities, and the constant practice of prohibiting marines, by proclamation, from departing the realm for the purpose of entering into foreign service, at times when the state of Europe would render it dangerous to weaken the strength of the nation, I conceive that the British seamen on board the Friendship, who actually executed a contract for the 26th of March last, are guilty of a misdemeanor, for which, upon conviction, they may be fined and imprisoned: as the King, by his prerogative, may restrain all his subjects from departing the realm, he undoubtedly may such classes of them on which its strength depends.
Secondly, with respect to Brough, Taylor, and Rising, if the entering into foreign service, in breach of the proclamation, be a crime in the British seamen, I am of opinion that a conspiracy to entice and carry them into foreign service is also a misdemeanor, punishable by fine and imprisonment, if the evidence upon examination is sufficient.
Thirdly, with respect to the sufficiency of the defence to an action brought against the officers, I think they might justify the detention of the ship, so long as the British seamen were on board, and till they received directions upon the subject. The commander of a ship actually disobeying the law cannot, I apprehend, insist upon a clearance. By the 12th Ch. 2, c. 4, s. 12, power is given to the King to prohibit, by proclamation, the exportation of gunpowder, &c., but no specific mode of putting the Act in force, by preventing the exportation, is pointed out; nor was any pointed out till the 29th George 2, c. 16, forfeited the gunpowder and inflicted a penalty. During the period which elapsed between the passing of those two Acts, I think the officers of the customs must have been justified in stopping a ship having gunpowder on board, after a proclamation, till such gunpowder was relanded; and this proclamation is equally warranted by the common law. July 31, 1788.
(20.) JOINT OPINION of the Attorney and Solicitor General, SIR PHILIP YORKE and Sir CLEMENT WEARG, on Criminal
Jurisdiction in the Leeward Islands. 1725. William White, an inhabitant of the island of Spanish Town, which is one of the Leeward Islands, kills one Cary there; for which being apprehended by the Governor of that island, he, the said White, petitioned the Chief Governor of all the Leeward Islands (by whom all commissions of oyer and terminer within that Government are issued) for a speedy trial in Spanish Town aforesaid, or, if that could not be, for want of proper officers in that island, that he might be sent for to St. Christopher's, and tried there.
Spanish Town is an island where no courts or officers are established for the administration of justice.
The Chief Governor, therefore, caused the said White to be brought up to St. Christopher’s, where he was examined before four of his Majesty's Council there, and they, thinking there was great cause to suspect that White was guilty of the said murder, the said Chief Governor awarded a special commission of oyer and terminer for his trial in St. Christopher's, and White has since been convicted of the murder of Cary, before those commissioners, by a jury of St. Christopher's, and received sentence of death thereupon.
The statute 33 Henry 8, reciting that persons, upon vehement suspicion of treasons or murder, being many times sent for to divers shires of the realm, and other the Kings' dominions, to be examined before the King's Council upon their offences, and also setting forth the charge of the Crown, and inconveniency of remanding such suspected persons, after their examination, back to the places where their offences were committed, for trial, &c., enacts that, if any person, being examined by the King's Council, or three of them, upon any manner of treasons, misprisions of treasons, or murders, do confess any such offences, or that the said Council, or three of them, upon such examination, shall think any persons so examined to be vehemently suspected of any treason, misprision of treason, or murder, that then, in every such case, by the King's commandment, his Majesty's commission of oyer and terminer, under his great seal, shall be made by the Chancellor of England to such persons, and into such shires, as shall be named and 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 any 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 ?
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 Quære 2. This question depends upon the former, and is answered under that.
To Quære 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 judicature 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.
(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.