consistent with His Majesty's rights and prerogative: we have considered thereof and do not think ourselves sufficiently informed to give an opinion upon the question so generally stated, because it depends upon the constitution of the assembly of Jamaica, and the usage, whether, whilst the assembly is sitting, all vacancies should first be signified by themselves to the Governor; and yet the case must frequently have happened. Nothing is transmitted to us relative to the particular constitution or usage in Jamaica upon this point, and there are no parties to whom we could send for information.

What the assembly claims seems analogous to the law and practice here; but it does not from thence necessarily follow that it is, or ought to be, the law there; that must depend upon their own constitution and usage, which, without further light, we cannot venture to give an opinion upon, April 29, 1755.

W. MURRAY.

RICH. LLOYD,

(7.) The opinion of the same lawyers, whether a person chosen into the Assembly, had a right to sit, he having been convicted of a crime in England.

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

May it please your Lordships;

Pursuant to your Lordships' desire, signified to us by Mr. Pownall, in his letter of the 25th instant, setting forth that your Lordships had received a letter from Mr. Knowles, Governor of Jamaica, dated the 25th of January last, acquainting your Lordships with his having dissolved the assembly of that Island a second time, and containing his reasons for such dissolution (a copy of which letter, and the other papers inclosed to us, are

herewith returned,) desiring our opinion whether Mr. Dawes, the gentleman mentioned therein, by having been convicted in England of uttering treasonable expressions against His Majesty, and sentenced to enter into recognizance for his good behaviour for seven years, is disqualified during that term from being elected into, or sitting in, the assembly of Jamaica, he having taken the oaths to His Majesty and made and subscribed the declaration and taken and subscribed the oath of abju ration; we have taken the same into our consideration and are humbly of opinion, that though the said assembly might in their discretion have expelled the said James Dawes, in consequence of the said judgment, yet that the same was no legal objection to his right or capacity of sitting.

April 29. 1755.

W. MURRAY.

RICH. LLOYD.

(8.) The opinion of the Attorney and Solicitor-General Northey, and Harcourt, how far a representative, absenting himself, may be punished.

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

My Lords;

In humble obedience to Her Majesty's commands in council, signified to us by your Lordships' secretary, we have considered what method may be proposed for punishing such members of the assembly of Barbadoes, as wilfully absent themselves from the said assembly, which consisting of two and twenty, and fifteen being reputed there to be necessary to be present, eight of them absented themselves voluntarily, and thereby the proceedings

of the assembly have been for a long time obstructed and we do humbly report to your Lordships, that the assembly in Barbadoes begun and hath been continued, by virtue of the commissions granted from time to time to the Governors of that island by Her Majesty's predecessors, and by Her Majesty, whereby the Governor is enabled, by the advice of Her Majesty's council there, to summon and call general assemblies of the freeholders and planters there, and, with the advice and consent of the said council and assembly, or the major part of them, to make laws for the public peace, welfare, and good government of that island; and the number of persons of the assembly being two and twenty, twelve, being the majority of them, is sufficient to be present, and the appointing fifteen to be necessary, which was done by an order of the assembly as we are informed, and not by order of Her Majesty or her predecessors, or by any act of the assembly confirmed by Her Majesty or her royal predecessors, is irregular, and could not alter the quorum appointed by Her Majesty's commis

sion.

As to the case of the absentees, we are humbly of opinion that they being chosen and having accepted of the places and acting in the assembly and wilfully absenting themselves without any just occasion, to the total obstruction of all business, they are guilty of an high misdemeanor, in the execution of of the trust in them reposed, and contempt of Her Majesty's royal authority; and there being no power expressly lodged by Her Majesty in the assembly to punish such offences, they may be proceeded against in Her Majesty's ordinary courts of justice there, and punished by fine and imprisonment.

But whether a prosecution of an assemblyman in the courts of justice of that Island, without any application from the assembly to Her Majesty or her Governor there for that purpose, may not tend to Her Majesty's disservice, by creating an uneasiness in the present and all future assemblies, and occasion an unwillingness to serve therein, is most humbly submitted to Her Majes ty.

February 1, 1704-5.

Sir:

EDW. NORTHEY.

SAM. HARCOURT.

Some members of the late assembly of Barbadoes having applied to me on behalf of themselves and the rest of the absenting members, and represented that a matter of fact, stated in the report lately made by Mr. Solicitor and myself, hath been misrepresented, for that the said assembly hath power to punish their own members, and therefore, they desire an opportunity to make out the same; I am content that the said report may be reviewed and altered as justice shall require, which I desire you to communicate to the Lords.

EDW. NORTHEY.

February 9, 1704.

(9.) The opinion of the Attorney-General De Grey, whether the Assembly of South Carolina could grant money to the Bill of Rights Society.

Questions arising out of the foregoing state of facts, and upon which questions the opinion of Attorney-General is desired are:

Whether, under the circumstances above mentioned, the commons house of the assembly of South Carolina

can, or ever could, legally, by an order of that house alone, not concurred in by the other two branches of the legislature, appropriate to specific public purposes, any sums of money for such public purposes of the colony as the said commons house of general assembly might think fit? If this question is answered in the affirmative, then question whether, under the above mentioned circumstances, the foregoing order of the said commons house of assembly, on the 8th of December last, for the purpose therein mentioned and thereby intended, is warranted by law and the constitution? If not, what remedy, in either of the cases stated, can be legally and constitutionally applied in a matter of so great importance to His Majesty's government and the future wellbeing and security of the colony of South Carolina?

1st. I am of opinion, that the house of assembly of South Carolina cannot, by the constitution of that colony, without the concurrence of the governor and council, legally direct the treasurer of the colony to issue out of the balance or surplus of funds arising from taxes granted to the King, and appropriated by the legislature of the colony to certain public services, any sums of money for such other public purposes of the colony as the house of assembly shall alone think fit. Such a power

would, as I conceive, be contradictory to the first and fourth articles of the commissions and instructions, repugnant to the nature of the grant by which the surplus must remain disposable by the same authority which raised it, and cannot, I think, be warranted by the modern practice of a few years, irregularly introduced and improvidently acquiesced in.

2d. I think the order of the assembly, of the 8th of December last, is not to be supported in point of law;