yet on the hard circumstances of the petitioner's case, appearing by the annexed affidavits, and for that it hath been admitted by the agents for the island of Barbadoes, that the manner of proceeding in this case is new, and what hath not been often, if at all, used in that island, I submit it to your Lordships' consideration, whether a copy of the petition may not properly be transmitted to the Governor of that island, with an account of the course of proceeding of courts of equity in England in case of contempts, and how the same have been here discharged, directing the Governor to see that justice be done the petitioner if it hath been denied him hitherto. December 6, 1705. EDW. NORTHEY.

(8.) The opinion of Mr. Jackson, on the power of the Governors, as Chancellors, over idiots.

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

May it please your Lordships;

In humble obedience to your Lordships' commands, signified to me by Mr. Pownall, by his letter of the 10th of December last, I have prepared the draught of a clause, giving to the Governors of the plantations, as chancellors, the necessary power to issue commission for the care and custody of idiots and lunatics, agreeably to the usage and practice of this kingdom.

And whereas it belongeth to us, in right of our royal prerogative, to have the custody of idiots and their estates, and to take the profits thereof to our own use, finding them necessaries, and also to provide for the custody of lunatics and their estates, without taking the profits thereof to our own use: and whereas while such idiots and lunatics, and their estates, remain under our immediate care, great trouble and charges may arise to

such as shall have occasion to resort unto us for directions respecting such idiots and lunatics and their estates, and considering that writs of enquiry of idiots and lunatics are to issue out of our several courts of chancery as well in our provinces in America, as within this our kingdom respectively, and the inquisitions thereupon taken are returnable in those courts, we have thought fit to intrust you with the care and commitment of the custody of the said idiots and lunatics and their estates; and we do by these presents give and grant unto you full power and authority, without expecting any farther special warrant from us from time to time, to give order and warrant for the preparing of grants of the custodics of such idiots and lunatics and their estates, as are, or shall be, found by inquisitions thereof, taken or to be taken, and returnable into our court of chancery; and thereupon to make and pass grants and commitments under our great seal of our province of,of the custodies of all and every such idiots and lunatics, and their estates, to such person or persons, suitors in that behalf, as according to the rules of law, and the use and practice in the like cases, you shall judge meet for that trust; the said grants and commitment to be made in such manner and form, or as nearly as may be, as hath been heretofore used and accustomed, making the same under the great seal of Great Britain, and to contain such apt and convenient covenant, provisions, and agreements, on the part of the committees and grantees to be performed, and such security to be by them given, as shall be requisite and needful.

15th July, 1772. RD. JACKSON. (9.) A second opinion of the same lawyer, on the same subject, in a letter to the Secretary of the Board.

Dear Sir:

This accompanies the draught of a clause to be inserted in the commissions of Governors in the plantations, respecting lunatics, &c. It is very nearly the same as the warrant under which the chancellors of Great Britain act; which I thousht advisable (having at first framed it in words more different,) because the care and custody of lunatics, &c. under a known instrument (many years acted under in this kingdom) is more likely to be agreeably to the usage and practice of the realm, than under any set of words newly devised. The alterations I have therefore made, are only to suit the clause to that in which the two countries differ,

The warrant of the King to the chancellor assigns his custody of the great seal as the reason why the authority is delegated to him; that reason is preserved in the draught I send you, and so far the commission containing such a clause will give the power to the governor as chancellor (or as president of the court of chancery in colonies where he is so) but it cannot be more incorporated into the office of chancellor, as I conceive, because neither the warrant in England, nor the commission in the colonies does or should confer a judicial authority; that, the chancellor had before, in matters of equity, and the courts of law, in matters of common law, in the case of lunatics and their estates, as well as in the case of all others. The warrant in England, therefore, I think, only gives powers of administration and management, and for that purpose puts the chancellor in the place of the King. If a question in law or equity arises, that question can only be decided by a bill or action, unless it be a question between the lunatic and his committee, which the lunatic himself

could have decided, had he enjoyed the use of his senses. These too should be the bounds of the Governor's power; and I have, therefore, chosen the expression of an instrument, the force and effect of which have been long understood.

15th July.

RICH. JACKSON.

(10.) The opinion of the Attorney and Solicitor, Ryder and Strange, on the erecting of a court of exchequer in the colonies.

Quare 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 shnuld 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.

12th June, 1738.

J. STRANGE.
D. RYDER.

(11.) The Attorneg General Northey's opinion, on an act of the Barbadoes Assembly to dock the cntuil of an

estate.

To the Right Hon. 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 enclosed act, passed in Barbadoes, intitled "an act to dock the entail of Mount Lucie plantation, and other, the estate in this island of John Lucie Blackman Esq. and to vest the same in the said John Lucie Blackman, in fee simple," which act hath lain with me since the 16th of February last, because I could not procure a sight of the wills therein mentioned, but having now seen and perused the same, I have no objection against the said act, but am of opinion that the same is just and reasonable, and fit to be approved of by his Majesty, especially for that