is directed by your Lordships to enclose to us an extract of so much of the said letter as relates thereto, as also papers therewith transmitted, containing an account of the assembly's proceedings in this affair, and a copy of the twenty-eighth article of His Majesty's instructions to Mr. Wentworth, which relates to the settling of townships, (all which are herewith returned,) and to desire our opinion concerning this matter, and what may be proper for His Majesty to do therein. We have taken the same into consideration, and are of opinion that as the right of sending representatives to the assembly was founded originally on the commissions and instructions given by the Crown to the Governors of New Hampshire, His Majesty lawfully may extend the privilege of sending representatives, to such new towns as His Majesty shall judge to be in all respects worthy

thereof.

We therefore humbly submit, that it may be advisable for His Majesty to send positive instructions to the Governor to dissolve the assembly as soon as conveniently may be, and, when another is called, to send writs to the said towns to elect representatives and support the rights of such representatives when chosen.

March 18, 1747.

D. RYDER.

W. MURRAY.

(4.) Mr. Fane's opinion on the same point. To the Right Honorable, the Lords Commissioners for Trade and Plantations.

May it please your Lordships;

In obedience to your Lordships' commands, signified to me by Mr. Gellibrand, desiring my opinion on the matters contained in the extract of a letter from Mr.

Wentworth, His Majesty's Governor of New Hampshire, and in several other papers relating to the proceedings of the assembly of that province, I have carefully read over the said extract of Mr. Wentworth's letter; the clause in the commission of John Cutts, Esq., dated the 8th day of September, in the 31st year of King Charles the Second, relating to the calling the assembly of the said province; the clause in the commission of Samuel Allen, Esq., Governor of the said province, in the reign of King William and Queen Mary, relating to the said assembly; the 38th clause of the instructions given to the said Governor Wentworth in the year 1741; the copy of His Majesty's writ by which the assembly of the said province was convened, and the sheriff's return thereon; and the copy of the proceedings of the said assembly from the 24th day of January, 1744, to the 29th of the same month inclusive, which were sent to me, and are herewith returned to your Lordships.

And I beg leave to observe to your Lordships, that, as the right of sending members to the general assembly of the said province appears to me to be originally founded on the said commission to the said John Cutts to be President of the Council of said province, by which commission, as well the persons, who are to choose such deputies, as the time and place of their meeting, are left to the discretion of the said President and Council: and as by the commission granted by King William and Queen Mary to Samuel Allen, Esq. to be Governor and Commander-in-Chief of the said province, the assembly of the freeholders thereof is directed to be called in such manner and form as the said Governor, by the advice of the Council, shall find most convenient for His Majesty's service, which powers of the said Governor and

Council do not appear to me to have been taken away or abridged, I am of opinion that the Governor and Council of the said province, for the time being, may by His Majesty's writ command the sheriff of the said province to make out precepts, to be directed to such towns, parishes and districts, within the same, as they, the said Governor and Council, shall think fit, requiring them to elect and send fit persons, duly qualified to represent such towns, parishes and districts in the general assembly of the said province.

And it likewise appears to me, that the several precedents offered by the assembly of the said province, in support of the rights being in the said house, or general court, to grant the privilege to towns or parishes, to send representatives to sit in the general assembly, do not sufficiently prove or make out such a right, most of them being cases, where such right was granted by His Majesty's charter, and confirmed by act of the assembly, assented to by the Governor and council; and any modern instance of the assembly alone taking on themselves to grant such a privilege, appearing to me a high encroachment on His Majesty's prerogative, and tending manifestly to vest the whole government of the province in the general court, or house of representatives.

And, as it is represented in Governor Wentworth's letter that the five towns, or districts, therein mentioned, pay near one-fifth part of the provincial tax, it seems to me that the said Governor acted properly, in directing the said towns to elect and send representatives to the general assembly; and that the assembly have acted arbitrarily and illegally in excluding such members, before they proceeded to the choice of a speaker.

But, in order that no doubt may remain concerning the right of the said towns to send such representatives,

and as it may hereafter be necessary to empower other towns to do the like, pursuant to the 38th article of the said Mr. Wentworth's instructions for the settling new townships, who are to have and enjoy all the immunities and privileges as do of right belong to any other parish, or township, within the said province, I apprehend it may be expedient for His Majesty, in case it shall be his royal pleasure so to do, to make some new establishment concerning such elections, which, I conceive, may be done by sending instructions to the Governor of the said province, thereby empowering the said towns, and districts, and also any other new townships to be settled within the said province, pursuant to the aforesaid article, under such restrictions as His Majesty in his royal wisdom shall think fit, to choose and send representatives to sit in the said assembly, or general court, and directing the said 'Governor to issue proper writs and precepts for that purpose, which instructions, I am of opinion, His Majesty, in case he shall so think fit, may accordingly send to the said Governor lawfully and consistently with the constitution of the said province. FRAN. FANE.

July 1, 1746.

(5.) The opinion of the Attorney and Solicitor-General, Ryder and Murray, on the same point.

CASE. On the 28th of November, 1746, an act was passed in His Majesty's province of North Carolina, entitled "an act for the better ascertaining the number of members to be chosen for the several counties within this province, to sit and vote in general assembly, and for establishing a more equal representation of all His Majesty's subjects, in the house of burgesses.'

The preamble of this law sets forth, that the inhabit

ants of the several northern counties had assumed to themselves the privilege of choosing five persons to represent them in general assembly, without any pretence for such claim, while those of the southern and western counties, who are more numerous, and contribute much more to the general tax, were represented only by two members, which irregularity had been attended with great inconvenience; and therefore directs, that every county already erected or to be erected, shall, for the future, choose two representatives to sit in general assembly, and that fourteen members shall constitute a quorum of the assembly.

This act having been transmitted to the Lords Commissioners for Trade and Plantations by Mr. Johnston, late Governor of this province, a petition was soon after presented to the King, on behalf of the northern precincts or counties of Chowan, Perquimans, Pasquotank, Currituck, Berty and Tyrrell, complaining of the said Governor, of having passed the said act in an illegal, improper way, and praying to be reinstated in their just rights and privileges.

This petition having been referred by His Majesty to the Lords of the committee of Council, was, by their Lordships, referred to the Board of Trade to consider thereof and report their opinion upon it.

Upon a hearing before the Lords Commissioners for Trade and Plantations, of the petitioners, in consequence of the said reference, and it appearing that they were not able to prove the allegations of their petition for want of evidence, their Lordships made a report to the Lords of the committee of Council, and submitted, whether it would not be proper that orders should be given to admit the petitioners to examine witnesses in