esty to captain Osborne, to constitute justices of the peace in Newfoundland, is not contrary to, or inconsistent with, any of the provisions in the said act; and that there is no interfering between the powers given by that act to the fishing admirals, and the authorities which justices of the peace are invested with by their commission.

December 29, 1730.

P. YORKE.

(5.) The opinion of the Attorney-General, Ryder, on the King's power to erect courts of justice at Newfound land.

To his Grace the Duke of Bedford.

May it please your Grace.

In obedience to your Grace's commands, signified to me by your Grace's letter of the 23d instant, setting forth that your Grace had laid before the King a letter which you had received from Captain Rodney, late Governor of Newfoundland, wherein he desires at the request of the principal inhabitants of that island, that your Grace would move his Majesty in their behalf, that power may be granted to take cognizance of capital crimes there; his Majesty had thereupon been pleased to command your Grace to transmit to me an extract of the said letter, that I should consider of the request of the said inhabitants, and report to your Grace my opinion for his Majesty's information, in what manner I think his Majesty may comply with their request, consistent with the 13th article of the act of parliament of the 10th and 11th of the reign of the late King William, for the trial of persons guilty of capital crimes in the said island, in any shire or county in England, a copy of which article your Grace was pleased to inclose: I have

perused and considered the act of the 10th and 11th of King William III. and the inclosed extract from Captain Rodney's letter, and am of opinion that his Majesty has a prerogative and right to erect courts of justice in Newfoundland for the trial and punishment of all sorts of crimes committed there, and that the act of 10th and 11th of King William III. does not take away or affect that prerogative, so that his Majesty, notwithstanding that act, may erect and constitute such court there for the trial of capital and other crimes as his Majesty shall, in his royal wisdom, think proper.

I would only take the liberty of informing your Grace, that about the year 1738, this matter was taken into consideration by the board of trade, in pursuance, I believe, of some reference to them from his Majesty, or a committee of council, and the board did make a report concerning it, after having taken the opinion of myself, and his honor the present master of the rolls, the then attorney and solicitor-general, in which report they proposed inserting into the commission to the next governor of Newfoundland, a clause to empower the governor to erect a court of justice there, to the same effect as is inserted into the commission to other governors of his Majesty's American commission governments; but that clause coming afterwards to be considered in council, was rejected, as I have been informed.

January, 30, 1749.

D. RYDER.

(6.) The opinion of the Attorney-General, Ryder, thut the King could not give power to establish a criminal court at Newfoundlan!, but under the great seal.

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

My Lords;

I have perused and considered the several papers your Lordships were pleased to transmit to me, with Mr. Hill's letter of the 26th instant, desiring my opinion, whether a power to take cognizance of capital crimes in Newfoundland can be granted to the governor of that country by instruction only, signed by his Majesty in council, or whether it ought to be inserted in his commission under the great seal; and whether, if such power must be inserted in the commission, the words proposed for that purpose in the year 1738, and which were sent me, are proper: I am of opinion, such power cannot be granted by instruction, or any otherwise than under the great seal, and, therefore, if thought advisable to be granted at all, ought to be inserted in the governor's commission; but the manner of his exercising such power may be prescribed and limited by instructions, for any breach of which he will be answerable to his Majesty.

The form of words in the inclosed extract from the draft of a commission in 1738, is, I think, proper for the purpose, excepting that neither the power of trying, nor that of pardoning treasons, appear to me fit to be intrusted to the governor, or a court to be erected by him.

March 27, 1750.

D. RYDER.

(7.) The opinion of the same lawyer, in pursuance of the fo mer, that the King may instruct his Governor of Newfoundland, to cause to be executed such persons as might be convicted of capital crimes, except treason.

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

May it please your Lordships;

In obedience to your Lordships' desire, signified to me by Mr. Hill's letter of the 8th instant, setting forth that frequent complaints having been heretofore made by the commanders of his Majesty's ships stationed at Newfoundland, of the great disorders committed on that island for want of courts of oyer and terminer, for the trial of capital offences committed there, it was the last year thought advisable (after my opinion had thereupon) to insert a clause in the commission prepared for Captain Drake, empowering him to appoint commissioners of oyer and terminer for the trial of such capital of fences, which power was limited by an instruction, whereby the governor was directed not to suffer any criminal to be deprived of life or limb by any sentence of such court, until his Majesty's pleasure was known.

That Captain Drake, in a letter to your Lordships, dated the 26th of December last, takes notice that this power, given him by his commission, had had a very good effect in putting a stop to the disorders and murders which had been committed; but represents that unless power is granted to execute in cases of necessity, it will be impossible to bring the offenders to the punishment due to their crimes, for as there is no prison of sufficient strength to confine them in during the winter season, they will, undoubtedly, be rescued by their companions as it has been frequently the case; or should they remain in prison, they must be destroyed by hunger and the excess of cold.

Your Lordships, therefore, desire my opinion upon this affair, and whether I have any, and what objection, to giving the governor a power of executing criminals convicted of capital offences, when he sees just cause, as well as of trying such offences: I have considered the

matter, and have no objection, in point of law, to the giving the governor such power as is proposed with respect to capital offences; but it does not seem proper to extend it to treason, nor to the case of the officers of his own ship, or of any of the trading ships that shall be

there.

May 16, 1751.

D. RYDER.

(8.) The opinion of the Advocate, Attorney, and Solicitor-General, Hay, Norton and De Grey, how far the King's power was limited at Newfoundland, by the statute of King William.

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

May it please your Lordships;

In obedience to your Lordships' commands, signified to us by Mr. Pownall's letter, dated the 28th day of February last, inclosing a project of arrangements proposed by the ambassador of France, to be reciprocally agreed to by the crowns of Great Britain and France, for avoiding any disturbance or dispute between the English and the French who carry on a concurrent fishery on the coast of Newfoundland, and signifying to us your Lordships' pleasure, that we should give our opinions, as soon as possible, upon the following queries:— 1st. Whether the articles of this project are consistent with the act of parliament of the tenth and eleventh of William the Third, cap. 25. to encourage the trade to Newfoundland? 2d. Whether the Crown can legally enter into, and has any power to enforce such regulations as are contained in the several articles of this project, so far as they relate to the subjects of Great Britain, either in the substance of the said articles, or in the