land in such places as they shall think fit, since they neglected to do it previous to his Majesty's instructions and declaration, shall not now be permitted to pitch upon lands already settled, but must have the effect and operation of their grants upon lands now unsettled.

July 23, 1734.

FRAN. FANE.

The grant being general of 12,000 acres of land, and the same being not described therein, nor ascertained by any survey before the proclamation of Governor Johnson, we are of opinion that such grantee cannot now take up lands within six miles of Purrysborough. For the right of the Lords Proprietors is now vested in the Crown, and such general grant could certainly not have prevented the Lords Proprietors from making subsequent grants of any particular lands, provided there was still sufficient land left to satisfy such precedent grant; and yet this would be the necessary consequence if such general grantee might, at any time before his lands are let out, take them wherever he pleases, and disturb the possession of any subsequent grantee. This would not only be a great invasion of his Majesty's right, but would create very great confusion, and would tend very much to the disturbance of the peace of the country.

August 12, 1734.

J. WILLES.

D. RYDER.

(9.) JOINT OPINION of the Attorney and Solicitor General, SIR WILLIAM GARROW and SIR SAMUEL SHEPHERD, on the Power of the Crown to alter the Tenure of Lands in Canada.

2, Lincoln's Inn, January 22, 1817.

MY LORD,-We have had the honour to receive your Lordship's letter, dated the 18th instant, transmitting to us the copy of a despatch addressed by your Lordship to the Governor of Canada, and of the reply which has been received from Sir J. Sherbrooke, relative to the power of the Crown to accept the surrender of lands granted to individuals in Canada for the purpose of regranting them in free and common soccage; and your Lordship is pleased to desire that we will take the same into our consideration, and report to your Lordship our opinion whether there is, either under the statute of the 31 Geo. 3, c. 31, or under the law originally

prevailing in the province, as referred to in the minutes of the Executive Council, any legal objection to changing the tenure of land in Canada in the manner recommended?

In obedience to your Lordship's commands we have considered the same, and we beg leave to observe that if it was intended to change the tenure of any lands without the consent or desire of the persons possessing such lands, or at once to effect a general alteration of tenure, there is no doubt that it could not be done without an Act of the legislative bodies, with the assent of his Majesty; but the question is, whether, if lands are surrendered to his Majesty, and thereby become revested in the Crown, his Majesty may not, by virtue of his prerogative, grant such lands to be holden by a tenure different from that by which they were formerly holden (provided the tenure on which they are so regranted be one which is lawful in the province). That a man holding of the Crown may surrender his land to the Crown of whom he holds, we conceive to be clear, and also that the Crown may regrant them upon such terms or tenure recognized by law as shall seem fit, unless restrained by some law or Act of Parliament. Looking at the British Acts which relate to the province of Canada, we do not find any such restriction of the royal prerogative as applicable to this case. By the 14 Geo. 3, c. 83, the title under which any lands were then holden was not to be affected by that Act, but was to remain as if the Act had never passed. But by the same Act a power to grant lands in free and common soccage by the Crown is recognized, because after the 8th section has directed that the laws of Canada shall be the rule of decision in all matters of controversy relative to property and civil rights, the 9th section provides that such provision shall not extend to any lands that have been or may be granted by his Majesty in free and common soccage. This statute imposes no restraint on the ordinary rights of the Crown, but merely leaves all subsisting tenure unaffected by that statute. There is, by the 43rd section of the 31 Geo. 3, c. 31, a restriction of the prerogative as to the tenure on which lands shall be granted in Upper Canada, because by that section his Majesty can only grant lands in free and common soccage; and all the consequences which follow such tenure by the law of England must follow such tenure in Upper Canada.

With respect to the province of Lower Canada, there is also a partial restriction upon the prerogative as to granting lands to be holden by any other tenure than free and common soccage—namely, where the grantee shall desire to have them granted in free and common soccage, there they must be so granted. These provisions, however, do not affect the right of his Majesty to accept a surrender of lands holden in seigneurie, and to grant such land in free and common soccage, though they compel his Majesty in certain cases to grant them to be holden by such last-mentioned tenure. The 44th section does not apply at all to this case, and neither enables nor restrains his Majesty as to any powers of granting lands in Lower Canada; but relates to the giving good and valid grants of lands in Upper Canada, holden under an incomplete or informal title by a mere certificate of occupation. We do not consider that the message of Lord Dorchester, as far as we collect the contents from the papers, could be deemed restrictive upon the prerogative of the Crown to accept a surrender of lands holden in seigneurie, or to grant such lands after they have been revested in the Crown in free and common soccage.

The 36th section of the 31 Geo. 3, c. 31, does not, in terms or by inference, impose any restriction on the prerogative of the Crown to accept a surrender of lands holden in seigneurie, and to regrant them in free and common soccage; but we think it would be necessary that at the time of such new grant proportionable allotments should be made of other land for the support of the Protestant clergy equal in value to the seventh part to be specified in the new grant; for the regulations of that clause are general, and would apply to grants of lands which had become revested in the Crown by surrender, as well as to lands which had never before been granted.

It is stated by the Chief Justice, and not disputed by the Executive Council, that the King of France, before the conquest of Canada, might have accepted a surrender of lands and have regranted them; and indeed it would have been extraordinary if such had not been the law. His Majesty, of course, must have the same power; and though the King of France might not have had power to grant in free and common soccage, if such tenure had not existed in Canada by the laws then in force (upon which we do not venture to form

any opinion), yet his Majesty having power to grant in free and common soccage, and being bound so to grant at the request of the grantee, if he grants at all, we humbly report to your Lordship that there does not appear to us to be any legal objection to his Majesty's accepting a surrender of lands holden in seigneurie, and regranting them in free and common soccage either under the statute of the 31 Geo. 3, c. 31, or under any law which prevailed originally in the province before the conquest.

The Right Hon. Earl Bathurst,

&c. &c. &c.

W. GARROW.

S. SHEPHERD.

(10.) JOINT OPINION of the Attorney and Solicitor General, SIR J. CAMPBELL and SIR R. M. ROLFE, as to the appropriation of Wild Lands in New Brunswick, by the Legislature of the Colony, in return for a Civil List.

Temple, April 4, 1837.

MY LORD,—We have to acknowledge the receipt of your Lordship's letter of yesterday's date, requesting us to report our opinion, whether it is in point of law competent to his Majesty, with the advice and consent of the Legislative Council and Assembly of New Brunswick, to render the tracts of wild land in that colony which belong to his Majesty jure coronæ, subject to the appropriation of the Legislature of the province, for a fixed period or in perpetuity, in return for a Civil List, to be settled on the Crown for a similar term, or in perpetuity, as may be thought best?

We have the honour to report to your Lordship, that we are of opinion that it is competent to his Majesty to make such appropriation of his hereditary revenues in the colony of New Brunswick as is suggested in your Lordship's letter.

The Lord Glenelg,

&c. &c. &c.

J. CAMPBELL.

R. M. ROLFE.

(11.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on Escheats in New Jersey. 1705.

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

MAY IT PLEASE YOUR LORDSHIPS,―In humble obedience to your Lordships' commands, signified to me by Mr. Popple, Jr., your

secretary, I have considered of the annexed letter and papers therewith sent, and have perused the letters patent and surrender mentioned in the said letter; and am of opinion, that the fines, forfeitures, and escheats in New Jersey belong to her Majesty, and not to the proprietors of the soil of that colony; for, as to the fines and forfeitures for offences, they were not granted to his late Majesty King James II., when Duke of York, by the letters patent granted to him of the Jerseys and other lands, under which grants the present proprietors claim. And as to the escheats, the whole tract was granted in fee to the Duke of York, to be holden of the King in common soccage as of his manor of East Greenwich; and the inheritance of part being granted away by the assignees of the Duke, to other persons in fee, they hold of the Queen and not of the proprietors; and, therefore, the escheat must be to her Majesty.

As to the appointing of rangers of the woods, the inheritance of those woods being in the proprietors, assignees of the Duke of York, I am of opinion the right of appointing rangers in them belongs to the owners of those woods, and not to her Majesty. October 19, 1705.

EDW. NORTHEY.

(12.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN SOMERS and SIR THOMAS TREVOR, on the Royal Right to Escheats in Virginia. No date.

MAY IT PLEASE YOUR MOST EXCELLENT MAJESTY,-In obedience to an Order of Council, hereunto annexed, we have considered of the question: Whether escheats in Virginia may be granted before they actually accrue? And it does appear to us, that the tenure by which the lands in Virginia are holden of the Crown of England, is in free and common soccage as of the manor of East Greenwich. The consequence of this tenure is, that where any person dies without heirs his land will escheat to the Crown, as having the immediate seigniory; and we are of opinion, that escheats of this nature cannot be granted before they happen, otherwise than by a grant or alienation of the seigniory itself, which we suppose is not intended to be done.