The second question is: Whether fines imposed by the King's court upon persons residing within the said territory for contempt or otherwise shall not pass by the said letters patent; and what fines pass thereby?

As to this we are of opinion that no other fines pass thereby but such as are imposed by the King's courts held within the said territory; the fines imposed at the courts leet of the grantees are expressly granted to them by the letters patent of King Charles II.; and the fines imposed by the King's courts held without the said territory cannot, with propriety, be said to arise or accrue with the same.

The third question is: What shall pass by the word forfeitures in the said letters patent?

As to this, we are of opinion that all goods and chattels, real and personal, in possession, being within the said territory, and forfeited by reason of any judgment or convictions for misdemeanor or felony, and all interests in any lands lying within the said territory forfeited to the Crown by any attainder of felony, do pass by the word forfeitures; but this word is so general and extensive, and the cases which may arise upon it so various, that it is impossible to give an opinion thereupon, which may answer every event, without having the particular facts stated.

The only question contained in Major Drisdale's letter is: How far the Governor of Virginia may exercise the authority given him by his Majesty in pardoning offences and remitting forfeitures arising in the Northern Neck?

As to which we are of opinion, that nothing contained in the said letters patent restrain him from exercising the authority of pardoning such offences; and if the pardon be granted before any forfeiture incurred by judgment in cases of misdemeanor, or by flight, conviction, or judgment in cases of felony, the pardon will prevent any forfeiture; but if the pardon be granted after the forfeiture actually incurred by any of the means aforesaid, though the offence will be thereby discharged, the right of the grantees to the things forfeited will continue.

August 12, 1727.

P. YORKE.

C. TALBOT.

(18.) OPINION of the Solicitor General, SIR WILLIAM THOMSON, on the King's prerogative of prohibiting his Subjects from going abroad. 1718.

SIR,—In obedience to the commands of the Lords Commissioners of Trade and Plantations, signified by yours received this day, I have perused the letters therein inclosed. The King may prohibit his subjects from going out of the realm without license, and the 5th of Richard 2, c. 2, forbids all persons to depart the realm without license, except those sort of persons mentioned therein. As to the particular persons intending to go abroad, a writ will be granted from the chancery, upon a suggestion of such intention, to prohibit them from going abroad, and security may be required by virtue thereof that they will not depart the realm without license, which, if they refuse, they may be committed till sufficient security is found. As to those already abroad, if they are required by proclamation to return home, and do not obey, I do not know of any method of getting at them by any process abroad; but it is proper that the King's minister, residing in the country where they inhabit, do require that they may be made to depart that country in order to their return.

November 12, 1718.

WM. THOMSON.

(19.) OPINION of the Attorney General, SIR ARCHIBALD MACDONALD, as to how far the King may restrain his Subjects from going abroad.. 1788.

A case of so much importance as the present, and not very frequently occurring, would require more investigation than the unavoidable shortness of the time permits me to make; nevertheless, certain established principles furnish conclusions which, in my judgment, forcibly apply to it.

The questions must be-first, whether the British seamen found on board of the Friendship have committed any, and what offence, and how it is punishable? Secondly, whether Brough, Taylor, and Rising have committed any, and what offence, and how that is punishable? Thirdly, whether, in case an action should be brought on account of the detention, there be a good defence to it?

As to the first, disobedience to the King's lawful commands is, by the common law, an high misprision and contempt, punishable, upon indictment or information, by fine and imprisonment; and that the King may lawfully command the return of his subject when out of the realm, under the penalty of seizing his lands till he return, or may command any particular subject to remain within the realm, by his writ of ne exeat regnum, or all, or any part of his subjects by proclamation, has been long and often recognized as a part of the common law. Fitzherbert, N. B. fol. 85, C. says, "that the King, by his proclamation, may inhibit his subjects that they go not beyond the seas, or out of the realm, without license, and that without sending any writ or commandment unto his subjects; for perhaps he cannot find his subject, or know where he is; and therefore the King's proclamation is sufficient in itself." And the Judges held (12th and 13th Ed.) that departing the realm without license was no contempt, though done with intent to live out of the Queen's allegiance; the departing having been before prohibition or restraint by proclamation, or writ of ne exeat awarded by the Queen; by which it is plainly implied that departing after proclamation would have been a contempt: and even so early as the reign of Edward I. several persons were impleaded for having acted contrary to a legal proclamation. Lord Hale, in his treatise De Portibus Maris, part 2, c. 8, sums up the law upon this subject thus: first, at common law, any man might pass the seas without license, unless he was prohibited: secondly, at common law, the King might, by his writ, prohibit a person particularly from going beyond sea without license, and this may be done at this day; thirdly, at common law, in time of public danger, and pro hac vice, there might be a general inhibition by proclamation, restraining any from going beyond sea without license. From another passage in a MS. of the same writer, he shows what kind of public danger he adverts to; for speaking of the general restraint, as distinguished from restraining an individual, he says, "This is clearly that restraint intended by the statute of Magna Charta, nisi publici antea prohibit facient (not as if it must be a prohibition by Act of Parliament), and this appears by the constant practice, especially in time of danger, when a free passage might either weaken the strength or disclose the secrets of the realm." And after citing many instances,

he adds, "and this prohibition the King may take off generally or particularly, as he pleaseth."

From these authorities, and the constant practice of prohibiting marines, by proclamation, from departing the realm for the purpose of entering into foreign service, at times when the state of Europe would render it dangerous to weaken the strength of the nation, I conceive that the British seamen on board the Friendship, who actually executed a contract for the 26th of March last, are guilty of a misdemeanor, for which, upon conviction, they may be fined and imprisoned: as the King, by his prerogative, may restrain all his subjects from departing the realm, he undoubtedly may such classes of them on which its strength depends.

Secondly, with respect to Brough, Taylor, and Rising, if the entering into foreign service, in breach of the proclamation, be a crime in the British seamen, I am of opinion that a conspiracy to entice and carry them into foreign service is also a misdemeanor, punishable by fine and imprisonment, if the evidence upon examination is sufficient.

Thirdly, with respect to the sufficiency of the defence to an action brought against the officers, I think they might justify the detention of the ship, so long as the British seamen were on board, and till they received directions upon the subject. The commander of a ship actually disobeying the law cannot, I apprehend, insist upon a clearance. By the 12th Ch. 2, c. 4, s. 12, power is given to the King to prohibit, by proclamation, the exportation of gunpowder, &c., but no specific mode of putting the Act in force, by preventing the exportation, is pointed out; nor was any pointed out till the 29th George 2, c. 16, forfeited the gunpowder and inflicted a penalty. During the period which elapsed between the passing of those two Acts, I think the officers of the customs must have been justified in stopping a ship having gunpowder on board, after a proclamation, till such gunpowder was relanded; and this proclamation is equally warranted by the common law.

July 31, 1788.

AR. MACDONALD.

(20.) JOINT OPINION of the Attorney and Solicitor General, SIR PHILIP YORKE and SIR CLEMENT WEARG, on Criminal Jurisdiction in the Leeward Islands. 1725.

William White, an inhabitant of the island of Spanish Town, which is one of the Leeward Islands, kills one Cary there; for which being apprehended by the Governor of that island, he, the said White, petitioned the Chief Governor of all the Leeward Islands (by whom all commissions of oyer and terminer within that Government are issued) for a speedy trial in Spanish Town aforesaid, or, if that could not be, for want of proper officers in that island, that he might be sent for to St. Christopher's, and tried there.

Spanish Town is an island where no courts or officers are established for the administration of justice.

The Chief Governor, therefore, caused the said White to be brought up to St. Christopher's, where he was examined before four of his Majesty's Council there, and they, thinking there was great cause to suspect that White was guilty of the said murder, the said Chief Governor awarded a special commission of oyer and terminer for his trial in St. Christopher's, and White has since been convicted of the murder of Cary, before those commissioners, by a jury of St. Christopher's, and received sentence of death thereupon.

The statute 33 Henry 8, reciting that persons, upon vehement suspicion of treasons or murder, being many times sent for to divers shires of the realm, and other the Kings' dominions, to be examined before the King's Council upon their offences, and also setting forth the charge of the Crown, and inconveniency of remanding such suspected persons, after their examination, back to the places where their offences were committed, for trial, &c., enacts that, if any person, being examined by the King's Council, or three of them, upon any manner of treasons, misprisions of treasons, or murders, do confess any such offences, or that the said Council, or three of them, upon such examination, shall think any persons so examined to be vehemently suspected of any treason, misprision of treason, or murder, that then, in every such case, by the King's commandment, his Majesty's commission of oyer and terminer, under his great seal, shall be made by the Chancellor of England to such persons, and into such shires, as shall be named and