(11.) The objection of the same lawyer to act of Barbadoes, as unreasonable.

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

May it please your Lordships;

In obedience to your Lordships' order of reference, signified to me by Mr. Popple, I have considered the following acts passed at an assembly of Barbadoes, in March 1701-2 and April 1702, viz: "an act for the further supply of fire-arms and other stores, &c., dated the 19th of March, 1701-2;" " an act to secure the peaceable possession of negroes and other slaves to the inhabitants of this island, and to prevent and punish the clandestine and illegal detinue of them, dated the 27th of April, 1702;" which laws, I conceive, are agreeable to law, and do not contain any thing prejudicial to Her Majesty's prerogative, except the act to secure the peaceable possession of negroes, &c., as to which I am of opinion, that though many parts of this law (which is not temporary but perpetual) may be of use to the planters in Barbadoes; yet that part of it which prohibits the carrying away white servants without consent of the owners, under the penalty of one hundred pounds, and obliges masters of ships to swear not to carry them away, is not fit to be approved of; for that children stolen from England and carried to the Barbadoes cannot be reclaimed and carried away at the instance of their parents; and as it is worded (if otherwise fit) it is unreasonable, being, if any person shall directly or indirectly carry off, attempt, or cause to be carried off, any white servant without knowledge of the owner, which a man may innocently do, the words (knowing such

person to be a servant) being omitted; and therefore I think this law, with these clauses in it, not fit to be approved.

Oct, 22, 1703.

EDW. NORTHEY.

(12.) The report of Mr. West, in favor of a Jamaica act upon general principles of colonial policy.

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

My Lords;

In obedience to your Lordships' commands, signified to me by Mr. Popple, on the 27th of June 1723, I have reconsidered an act passed in the island of Jamaica, entitled an act for encouraging the speedy settling of the plantation, commonly called Pero or Pera plantation, situate at Port Morant, in the parish of St. Thomas in the East, in this island; and for obliging all persons entitled to the equity of redemption thereof to redeem the same by a prefixed time.

In the consideration of acts passed in the American colonies, when the Governor, council and assembly of any province take it upon them, in the preamble of an act, to recite and aver a matter of fact transacted within their own bounds, and to which no objection or opposition is made, I apprehend that I ought to take those facts for granted, and upon that foot only to consider whether an act, referred to me, is reasonable to be passed into law or not.

And if this act be considered in that light, it seems to me to be much stronger than the common foreclosure of an equity of redemption upon a mortgage; for the act

recites, that it appears upon record in the island that the estate in question did originally belong to one Sir Thomas Lynch, and that he, so long ago as the year 1682, agreed for the sale of this estate to one Joshua Smith, for the sum of £6000; it also appears upon record that Smith never paid the purchase money but instead thereof, upon the 23d of November, 1682, reconveyed back to Sir Thomas Lynch his own estate, as a security for the said sum of £6000, with interest. Upon this Smith was let into possession of the estate, and enjoyed the same until the year 1693, and received the profits of it to a greater sum than the purchase money amounted to. In the year 1694, by an invasion of the French, this estate was wholly ruined and made desolate; so that from that time to this, it has been wholly unoccupied.

The act also takes notice, that this mortgage, that was made in the year 1682, appears to be unsatisfied, and therefore if it is considered that the legal estate was originally in Sir Thomas Lynch, that all the claim of Smith is founded upon a deed of purchase, for which he never paid any part of the consideration money, that the estate is now desolate, and if to this is added the consideration of what a vast sum £6000 principal money with interest from the year 1682 to this day must amount unto, in a country where common interest has been always, I believe, at least after the rate of eight or ten per cent. per annum, I think it very obvious that this act, which is only to give a family their own estate both in law and equity, cannot be considered but as much stronger than the common foreclosure of an equity of redemption; and yet, even in that case, if a mortgage is very old, as e. g. above twenty or thirty years

from the execution, and no interest has been paid upon it, I apprehend that the court of chancery would not admit a mortgagor to redeem against a mortgagee in possession, but would look upon the equity of redemption as extinguished by the antiquity of the debt: in the present case the demand is of above forty years standing, and the equity of redemption, (if any) is founded upon so unequitable a foot, that I am of opinion, it is just it should be foreclosed; nor do I think it an objection, that the case of infancy is not excepted; because, if they were major, a court of equity would not admit them to redeem and, therefore, an exception in their favor would be to no purpose.

But, however, this act is not an immediate foreclosure of the equity of redemption; but time is given to the representatives of Mr. Smith, until the 30th of May 1725, to come in and redeem if they think fit; and, that they might, if possible, be acquainted with this act, a public advertisement is directed to be made in the Jamaica Courant, and that your Lordships may see that the act was pursued in this respect, I have annexed a Courant to my report wherein this advertisement was made. But, this is not the only consideration that induced me to be of opinion that there was no objection to this act being passed into law. It is allowed in all the American colonies as a maxim of law, that a title to the possession of lands must necessarily be supported by an actual culture and planting of it; and that consequently the neglect of the one will extinguish the other.

This notion is founded in the nature of things; since it is obvious that no colony can ever be supported upon any other foot; and, in consequence of this, I be

of forfeiture, expires in the year 1724, so that the Smiths have for almost a whole year the option whether they will or will not take in such improvements as must be made within the said two years.

I shall not trouble your Lordships any further upon this occasion the consideration of these particulars, which appear upon the face of the records themselves, did formerly, and do still, oblige me to be of opinion, that there is no objection to this act being passed into law.

July 11, 1723.

RICH. WEST.

(13.) The Attorney-General, Northey's, objection to Barbadoes acts, as unreasonable and unjust.

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. Popple, I have considered of the several laws of Barbadoes, mentioned in the printed book of laws for that island, therein numbered 41, 42, 108, 145. The design of which acts being to ascertain the fees of the several officers of that island concerned therein, and to oblige them to hang up tables of those fees in their respective offices and courts wherein they execute their employments, thereby to prevent extortion and oppression there, if the fees be reasonable (of which I am not a judge,) I have no objection against the design of the said acts, but I am of opinion that one of the remedies appointed by the said acts for punishing the offenders against the said acts, is unreasonable and unjust, especially as to the secretary, provost-marshal, and the register in chancery of that island, who held their offices