causes of the plantations, and on their report that it is proper to allow the appeal prayed for, his Majesty in council has usually allowed the same, and not in any other manner. I have perused the decree, and think the petitioner has great hardship therein; and that upon a proper application he may obtain an appeal in that

cause.

Dec. 19th, 1717.

EDW. NORTHEY.

(18.) The opinion of the Attorney and Solicitor, Ryder and Murray, on the commission granted to De Lancy, the Chief Justice of New York.

We think the Governor should not have granted this commission different from the usage; but as the power given by the commission is general, we apprehend the grant is good in point of law, and cannot be revoked without misbehaviour.

25th July, 1753.

D. RYDER. W. MURRAY.

(19.) The opinion of the Attorney General, Yorke, in 1728, on the King's right to order a nolle prosequi to be entered on prosecutions, in Jamaica, for the penalty of an act of Assembly.

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

May it please your Lordships;

In obedience to your Lordships' commands, signified to me by letter from Mr. Popple, dated the 6th of August instant, referring to me the inclosed papers, (the titles whereof are contained in a schedule hereunto annexed), relating to an information exhibited by his Majesty's

Attorney General of Jamaica against Mr. Donovan, agent for the contractors for victualling the squadron in the West Indies, for the duties of a quantity of rum, brought from Barbadoes, and delivered on board one of his Majesty's ships at Port Royal for the use of said squadron; and desiring my opinion, whether his Majesty may lawfully grant Mr. Donovan a nolle prosequi, as the law stands upon which the information against him was filed.

I have considered the said papers, and another paper laid before me by Mr. Sharpe, agent for the said Mr. Donovan, and affirmed by him to be a true copy of the said information, and also an act of assembly, passed in Jamaica on the 13th of November, 1724, intitled "an act for granting an additional revenue to his Majesty, his heirs, and successors, for the better support of the government of this island," which is the law whereupon the said information is founded; and several clauses of the said act, having reference to the revenue act, passed in the said island in the year 1703, now expired. I have likewise considered that revenue act, and beg leave in the first place, to inform your Lordships that no proof has been laid before me of the facts contained in the said papers; and, therefore, the opinion I shall offer to your Lordships proceeds only from a supposition that those facts are represented iu a true light.

Upon this foundation, I conceive, that the prosecution against Mr. Donovan, being for the duty charged by the act of assembly of 1724, upon rum, and not for any penalty thereby inflicted, none of the clauses, inserted in either of the said acts, for excluding the power of the crown to grant nolle prosequis in the cases of penalties, do extend to this case; and, although the said duty is

appropriated towards the support of the government of the said island, yet I apprehend his Majesty may properly judge, upon circumstances laid before him, how far it is reasonable to permit his officer to carry on a prosecution in his Majesty's name, for the recovery of the said duty in a particular instance: wherefore, I am of opinion, that as the circumstances of this case are represented in the inclosed papers, his Majesty may lawfully order his attorney-general for the island of Jamacia, to stay proceedings upon the said information, and to enter a nolle prosequi to the same, if such shall be his royal pleasure.

Aug. 30, 1728.

P. YORKE.

(20) Mr. Fane's opinion on an act of the New York Assembly, for preventing prosecutions by information, as inconsistent with the Kings prerogative.

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

My Lords;

In obedience to your Lordships' commands, signified to me by Mr. Popple's letter of the first of May last, I have perused and considered an act passed at New York, in the year 1727, intitled "an act for preventing prosecution by informations." The act recites, that many of his Majesty's subjects have been lately prosecuted in the respective counties, and in the supreme court of this colony, upon information filed against them by the attorney-general and his deputies; though the matters charged against them have been generally trivial and inconsiderable: therefore, it is enacted that all informations filed by his Majesty's attorney-general of this col

ony, now depending in the respective courts of this colony, shall be quashed; and the respective judges, and justices of the several courts in this colouy, where such informations are filed, shall not allow or admit any process or proceedings whatsoever thereon, after the publication of this act; and all such process and proceedings, are then to cease, determine, and become void, and be dismissed the said court, or courts, accordingly: and it is enacted, that from and after the publication of this act, no person or persons whatsoever, shall be troubled, vexed, or disturbed in his, or their, liberty or estate, by the King's attorney-general for the time being, or by his deputy, or deputies, or any other person or persons whatsoever, upon pretence of any misdemeanour committed, otherwise than by presentment of a grand jury, or by information by an order from the Governor for the time being, signed in council, for such prosecution; and the party, or parties, so presented, shall be brought to trial the second court after such information filed, or be discharged the court without paying of any fees, any law, usage, or custom to the contrary notwithstanding, provided that, of the actions already commenced upon informations, as aforesaid, such of them may be brought on again, as the Governor for the time being, by an express order, signed in council within one month after the publication of this act, shall order and direct; provided also, that, as well the prosecutions to be made on such orders, as on any other such order or orders, to be signed in manner as aforesaid, shall be triable in the respective counties, only, where the matters of fact did arise, or was committed. And it is further enacted, that any person, or persons, prosecuted by information, and brought to trial, the second court, as aforesaid, and acquitted by the

verdict of twelve men, shall be discharged the court, without paying any fees, excepting to such person, or persons, as he, she, or they, shall employ in their necessary defence. It is further enacted, that, if the attorneygeneral for the time being, his deputy, or deputies, or any other person, shall prosecute any person, or persons, contrary to the true intent and meaning of this act, excepting on such penal statutes as include the plantations, or where it is otherwise provided for by acts of the gen eral assembly of this colony, shall forfeit £100 current money of the same colony for every such offence, to be recovered by action of debt in any court of this province, the one half to the person, or persons, who shall prosecute the same to effect, and the other half to his Majesty, his heirs, and successors.

I think this act a very violent, and extraordinary, attack upon the prerogative of the Crown; for the right the attorney-general has to file informations, is delegated to him from the King; and has been ever thought a most essential and necessary power, with regard to the security of the public tranquility, as well as for the service and protection of his Majecsty's revenue; and, I apprehend, the destroying that power in the manner it is attempted by this act, will be attended with very ill consequences; for if no delinquent is to be prosecuted without going through so solemn an inquiry whether it be expedient or not, I believe it will be an encouragement to wicked men to perpetrate the worst of villanies, in hopes, by justice being delayed, which it must necessarily be in this form of proceeding, they may escape that punishment they justly deserve; and which, in policy, ought to be as speedy as possibie. Another reason against the passing this act, and which I beg