as in causes of prize property, as taken jure belli, to the Lords of the Council, as Commissioners for Appeals in causes of prize by the American Act. March 13, 1715. NATH. LLOYD. Appeals from the Colonies in civil cases. Appeals in NOTES TO CHAPTER XI. It is the settled prerogative of the Crown to receive appeals in all colonial cases: per cur. Re Lord Bishop of Natal, 3 Moore, P. C. (N. S.) 156; and see stat. 25 Hen. 8, c. 19, s. 4. The right of appeal is one of the rights of the subject with which the Crown, by its mere prerogative, cannot interfere; for, as was said in Cuvillier v. Aylwin, 2 Knapp, 78, the Crown has no power to deprive the subject of any of his rights; but the Crown, acting with the other branches of the Legislature, has the power of depriving any of its subjects in any of the countries under its dominion of any of his rights. Appeals to Her Majesty in Council, and by her referred to the Judicial Committee of the Privy Council, are regulated by stat. 3 & 4, Will. 4, c. 41; and by s. 4 it is enacted that it shall be lawful for the Crown to refer to the Judicial Committee any matters whatsoever as Her Majesty shall think fit. See upon this section Re the Nawab of Surat, 5 Moore, Ind. App. 499: see also stat. 6 & 7 Vict. c. 38; 7 & 8 Vict. c. 69, s. 9; 14 & 15 Vict. c. 83, ss. 15-16; and Rules and Regulations made by Order in Council, June 13, 1853. In R. v. Suddis, 1 East, 314, Lord Kenyon, C.J., said: "It has always been considered that the judges in our foreign possessions abroad are not bound by the rules of proceeding in our courts here. Their laws are often altogether distinct from our own. Such is the case in India and other places. On appeals to the Privy Council from our colonies, no formal objections are attended to, if the substance of the matter, or the corpus delicti, sufficiently appear to enable them to get at the truth and justice of the case." And per Lord Tenterden,C.J., in Henley v. Soper, 8 B. & C. 20: "In considering the proceedings of a colonial court, we must look at the substance and not at the form, according to the rule adopted by the Privy Council. If we, sitting in England, were to require in the proceedings of foreign courts all the accuracy for which we look in our own, hardly any of their judgments would stand." Appeals were granted where judgments had been obtained against the Crown in Victoria, in several actions in the nature of Petitions of Right, without imposing terms or requiring security for costs: Re Attorney General of Victoria, L. R. 1 P. C. 147. In The Queen v. Eduljee Byramjee, 3 Moore, Ind. App. 481, the Court criminal cases. said that not only in England, but throughout the dominions of the Crown, no right of appeal in felonies has ever existed. "Nor are we aware that in any one single instance the Crown has ever, by the exer But cise of its prerogative, granted leave to appeal in any such case." it may now be considered as settled law, that an appeal to the Queen in Council from the colonies does lie in all criminal cases. "It seems undeniable that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where, either by the terms of a charter or statute, the authority has not been parted with, it is the inherent prerogative, right, and, on all proper occasions, the duty of the Queen in Council to exercise an appellate jurisdiction, with a view not only to insure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally" R. v. Bertrand, L. R. 1 P. C. 530. For instances of appeals in criminal cases, see Ames and Others, 3 Moore, P. C. 409; The Queen v. Mookerjee, 1 Moore, P. C. (N.S.) 272; Falkland Islands v. The Queen, Ib. 299; Levien v. The Queen, L. R. 1 P. C. 536; The Queen v. Murphy, L. R. 2 P. C. 35. Under the several charters erecting supreme courts of judicature in the East Indies, it was provided that in all indictments, informations, and criminal suits and causes, the supreme courts respectively should "have the full and absolute power and authority to allow or deny" appeals; and it was decided by the Judicial Committee that where the Supreme Court of Bombay refused to grant leave to appeal in a case of conviction for felony, there was no power in the Crown to grant an appeal: The Queen v. Alloo Paroo, 3 Moore, Ind. App. 488. The charter in that case had been granted under the authority of the stat. 4 Geo. 4, c. 71, s. 7, and Lord Brougham, in delivering the judgment of the Court, said: "The Crown may abandon a prerogative, however high and essential to public justice and valuable to the subject, if it is authorized by statute to abandon it; and here it is in the execution of a power conferred by statute that this abandonment, if any abandonment has been made, has taken place." This had reference to what is said by the reporter in Christian v. Cowen, 1 P. Wms. 329-namely, that even if there be express words in a charter excluding the right of the subject to appeal, these words shall not be held to deprive him of his right. To this doctrine the Judicial Committee refused to assent, citing Ash v. Rogle, 1 Vern. 367; but, for the reason above given, they said that even if it were true it did not apply to the case before them. CHAPTER XII. ON THE REVOCATION OF CHARTERS. (1.) OPINION of Lord Chief Justice HOLT, that the King might appoint a Governor of Maryland, in a case of necessity, notwithstanding an existing Charter by which Lord Baltimore was appointed Governor. 1690 (1). To the Marquis of Carmarthen, President of the Council. MY LORD,-I think it had been better if an inquisition had been taken, and the forfeiture committed by the Lord Baltimore had been therein found, before any grant be made to a new Governor; yet, since there is none, and it being in a case of necessity, I think the King may, by his commission, constitute a Governor, whose authority will be legal, though he must be responsible to Lord Baltimore for the profits (2). If an agreement can be made with Lord Baltimore, it will be convenient and easy for the Governor that the King shall appoint. An inquisition may at any time be taken, if the forfeiture be not pardoned, of which there is some doubt. Serjeants' Inn, June 3, 1690. J. HOLT. (1) The Privy Council, on the 21st of August, 1690, issued an order, “That the Attorney General do forthwith proceed, by scire facias, against the charter of Lord Baltimore, the Proprietor of Maryland, in order to vacate the same." On the 5th of February, 1690-1, Lord Baltimore was heard, by counsel, against the King's appointment of a Governor for Maryland. On the 12th of February, 1690-1, there issued an Order of Council that the draft by a commission, which had been prepared by the Attorney General and approved by Lord Chief Justice Holt, constituting Lionel Copley Governor-in-Chief of Maryland, be transmitted to Lord Sydney, the Secretary of State, for the Queen's signature: note in "Chalmers's Opinions," i. 29. (2) This cannot be considered sound law. The Crown had no power to revoke Lord Baltimore's charter, except upon or after an inquisition. (2.) JOINT OPINION of the Attorney and Solicitor General, SIR EDWARD NORTHEY and SIR SIMON HARCOURT, that the Queen may resume a Government under a Royal Charter that had been abused. MAY IT PLEASE YOUR MAJESTY,-In humble obedience to your Majesty's Order in Council, we have considered of the annexed extract of a representation from the Lords Commissioners of Trade and Plantations, upon letters received from Colonel Dudley, your Majesty's Governor of Massachusetts Bay and New Hampshire, complaining of great inconveniences happening to him in that government, from disorders in Rhode Island, for want of good government there; and also upon letters received from the Lord Cornbury, your Majesty's Governor of New York, complaining of like inconveniences from disorders in the colony of Connecticut, that and Rhode Island being charter Governments; and also of the report of the Attorney and Solicitor General of the late King William and Queen Mary, made in July, 1694: and we do concur with them in their opinions therein mentioned, that upon an extraordinary exigency happening through the default or neglect of a proprietor, or of those appointed by him, or their inability to protect or defend the province under their government, and the inhabitants thereof, in times of war or imminent danger, your Majesty may constitute a Governor of such province or colony, as well for the civil as military part of government, and for the protection and preservation thereof, and of your Majesty's subjects there, with this addition only, that as to the civil government, such Governor is not to alter any of the rules of propriety, or methods of proceedings in civil causes, established pursuant to the charters granted, whereby the proprietors of those colonies are incorporated; on perusal of which charters, we do not find any clauses that can exclude your Majesty (who has a right to govern all your subjects) from naming a Governor on your Majesty's behalf for those colonies at all times. EDW. NORTHEY. (3.) OPINION of the Attorney General, SIR EDWARD Northey, on the Queen's prerogative to receive a surrender of the Pennsylvania Charter. 1712. To the Right Hon. Robert, Earl of Oxford and Earl Mortimer, Lord High Treasurer of Great Britain. MAY IT PLEASE YOUR LORDSHIP,-In obedience to your Lordship's commands, signified to me by Mr. Harley, I have considered the report of the Lords Commissioners of Trade and Plantations upon the memorial of William Penn, Esq., Proprietor and Governor of Pennsylvania, proposing to surrender to her Majesty the powers of government wherewith he is invested; and I have also perused the grant of that government to him by King Charles II., with other deeds relating to Mr. Penn's title thereto, and to the government of the tract of land on Delaware River and Bay, now called the town or colony of Newcastle, alias Delaware, and he has made out to me his title thereto; and, according to your Lordship's commands, I have prepared a draft of a surrender of those powers from Mr. Penn and others, in whom the legal estate is, under him, to her Majesty, reserving to Mr. Penn his right to the soil of those colonies. In the letters patent of King Charles II. there are granted to Mr. Penn all mines of gold and silver in Pennsylvania, which, he says, he cannot surrender to the Crown, having made several grants thereof to several people which are not in his power, and therefore the surrender of them is not in the draft prepared, although, if it be insisted on, he may surrender and assign what is not granted. There is, likewise, an instrument prepared for her Majesty's accepting the said surrender; and in it Mr. Penn is an humble suitor to her Majesty, that she would be pleased thereby to declare that she will take the people of his persuasion, as well as the other inhabitants of those colonies, in her Majesty's protection. I do not observe that there is any provision made for the support of the government there, by any act of Assembly or otherwise, without which the government will be a charge to her Majesty; but the Council of Trade and Plantations, in their report, have represented that Mr. Penn affirms he does not doubt but the Assembly will readily make provision for the same, and he acquaints me that the |