There are other escheats upon attainder of treason, which are not incident to the tenure, but belong to the Crown (as a prerogative royal), of whomsoever the land be holden. It seems to us to be very doubtful, whether such royal escheats may, in any manner, be granted before they happen; but, if that might be done, we are humbly of opinion that it is not advisable for the Crown to part with such a right, and to put the forfeitures for treason in other hands.

J. SOMERS.
THOS. TREVOR.

(13.) JOINT OPINION of the Attorney and Solicitor General, SIR ROBERT RAYMOND and SIR PHILIP YORKE, on the King's Right to Mines in New Jersey. 1723.

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

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to us by Mr. Popple, and requiring us to consider the annexed extract of a letter from Mr. Burnet, Governor of New Jersey, dated the 12th day of December, 1722, in relation to gold and silver mines said to be found there, and to report our opinion, in point of law, what right and title is remaining to his Majesty in the said gold and silver mines, and how far the present proprietors have the right in the said mines, according to their several grants? We have considered the case as stated in the said extract of the letter transmitted to us, and have looked into the charter granted to the proprietors of New Jersey, and do certify your Lordships that we are of opinion that by the said charter only the base mines within that province passed to the grantees, and that the words of the grant are not sufficient to carry royal mines, the property whereof still remains in the Crown, notwithstanding anything that has appeared to us; but we beg leave to inform your Lordships that we have not heard the proprietors, or any person on their behalf, upon the subject-matter of this reference, not being directed by your Lordships so to do.

ROBT. RAYMOND.

November 30, 1723.

P. YORKE.

(14.) JOINT OPINION of the Attorney and Solicitor General, SIR J. S. COPLEY and SIR CHARLES WETHERELL, as to the Right of the Crown to Mines of Gold and Silver and other Minerals in Nova Scotia.

Serjeants' Inn, July 13, 1825.

MY LORD,-We have the honour to acknowledge the receipt of your Lordship's letter of the 21st June last, stating that in the province of Nova Scotia it is understood that very extensive mines of iron, coal, and other minerals might be found, and would be capable of being worked to advantage, and that it has therefore become an object of importance to ascertain how far the rights of the Crown to these minerals are affected by the grants of land which have already been made throughout the province in favour of individuals, and that those grants have been numerous and extensive, but the terms of them have not been always the same. In some cases an express reservation has been made to the King, his heirs and successors, "of all coals, and all gold, silver, and other mines and minerals." That in other cases, the words of the reservation enumerate merely particular metals, such as gold, silver, and copper, with the addition of the general words, "and all other mines and minerals." That in other cases, the enumeration of particular minerals is not followed by any general words comprehending or referring to other mines or minerals. That there are also cases in which the land has been granted without any mention whatever of mines or minerals. That all these grants are made under the Great Seal of the province, and are gratuitous on the part of the Crown, except that the grantee is bound to the payment of an annual quitrent.

And your Lordship, in reference to the preceding statement, was pleased to desire that we would report to your Lordship, for his Majesty's information, our opinion how far in each of the several cases above mentioned the King is deprived of his right to the mines below the surface in the lands granted in the province of Nova Scotia; and particularly whether the general exception "of coals, and also gold, silver, and all mines and minerals" in some of the grants, is to be understood in any sense more limited than the words according to their ordinary signification would seem to apply; and whether when the general reservation "of all other mines and minerals" immediately follows the enumeration of par

ticular metals only, such as gold, silver, and copper, the words are to be construed literally, or are to be understood as referring to mines, and minerals, ejusdem generis, that is to metallic mines, and not to mines of gold; and whether when the general words of the reservation are omitted, and the reservation comprehends in terms nothing more than certain enumerated minerals, all those minerals which are not so enumerated must be considered as having passed to, and become vested in, the grantee; and whether in those cases where the grant is entirely silent on the subject of minerals, but amounts to an absolute alienation of the fee-simple of the soil, the minerals are to be considered as tacitly included in the terms of such a grant, so as to divest the Crown of its right to them; and whether there is any general principle of law which would enable the Crown to resume, as improvident, a grant of lands in a waste country, by virtue of which the minerals had passed to the grantee tacitly, and by the mere operation of the general words of the grant; if it should be subsequently discovered that there were, beneath the surface, extensive and valuable mineral tracts of the existence of which the Crown was ignorant at the time of making the grant?

In compliance with your Lordship's directions, we beg leave to report, for the information of his Majesty, that we are of opinion that where the grant contains an exception of "coals, and also gold, silver, and all mines and minerals," all mines and minerals of every description under the surface of the land so granted remain in the Crown. In those cases where the general reservation of all other mines and minerals immediately follows the enumeration of particular metals only, such as gold, silver, and copper, we think the words other mines and minerals are not to be construed as signifying merely mines, &c., ejusdem generis, but that (in the case of a grant by the Crown) they would embrace mines and minerals of every description. Where the reservation is in terms confined to certain specific minerals, without any general words, we think the reservation cannot be extended beyond the minerals so mentioned, with the exception of gold and silver, which, whether mentioned or not, would be excepted as belonging to the King by virtue of his prerogative. If the soil be granted without any reservation of mines or minerals, either in general terms or by specific enumera

tion, still mines of gold and silver would, upon the principle above mentioned, remain in the Crown. We are not aware of any general principle of law which would, under the circumstances above suggested in your Lordship's letter, enable the Crown to resume its grant.

To Earl Bathurst,

&c. &c. &c.

J. S. COPLEY.

C. WETHERELL.

(15.) OPINION of MR. FANE on the King's Right to Treasuretrove in the Bahamas. 1737.

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, I have considered the two cases mentioned in the letter of Governor Fitzwilliams, dated the 12th day of November last-one relating to the right of administration to John Sims, a mulatto, who died intestate, leaving a wife, without any relations; the other relating to some treasure found at Providence by one of the inhabitants: and I beg leave to say, as to the first case, that John Sims, dying intestate without any relations, the moiety of such estate, which it is stated he died in the possession of, becomes the right of the Crown; the other moiety his wife will be entitled to, as he left no children.

As to the other case, if no person can legally prove a property in the treasure found, it will be deemed the property of the Crown.

February 27, 1736-7.

FRAN. FANE.

(16.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on the Queen's Right to Royal Fish at New York. 1713. The pleading is informal on both sides; for, first, the plea of the defendant, alleging a prescription in the inhabitants of the town of Southton to take whales on the high seas and coasts of the same, and convert them to their own use, is ill; for although royal fishes may be claimed by prescription, yet a prescription cannot be laid in the inhabitants; and New York being gained to the Crown of England within time of memory, no prescription can be there

M

against the Crown. Next, the traversing the day and year laid in the information, and the whales coming to his hands by finding and his conversion, is ill. The prosecutor's replication is also a mistake that royal fish cannot be claimed but by grant; and the traverse of the prescription, which should have been demurred to, because not well alleged.

The rejoinder, denying the Queen cannot be divested but by grant, being taken by protestation, is well enough, that being matter of law, and not fact; and joining issue on the traverse of the prescription was well, and no occasion for the prosecutor's demurrer; however, the plea of the defendant being ill, I am of opinion judgment ought to be given for the Queen.

July 30, 1713.

EDW. NORTHEY.

(17.) JOINT OPINION of the Attorney and Solicitor General, SIR PHILIP YORKE and CHARLES TALBOT, on the grant by Letters Patent of Felons' Goods, Fines, and Forfeitures. 1727. To the Right Hon. the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to us by a letter from Mr. Popple, referring us the state of the case between his Majesty and the proprietors of the Northern Neck in Virginia, together with the copies of two charters granted by King Charles II. and King James II., and a letter from Major Drisdale, late Lieutenant-Governor of Virginia, hereunto annexed, we have considered the same, and the queries proposed in the said letter.

The first of which queries is: What shall pass by the grant of felons' goods in the said letters patent of King James II.; and whether the goods of a felo de se shall not pass thereby?

As to which we are of opinion that, by the grant of felons' goods, all goods in possession belonging to any felon convicted, which are within the district described in the grant, do pass; but it hath been determined that those words do not extend to any debts or rights of action, nor to any leases for years, or other chattels real, belonging to such felon, nor to any goods or chattels whatsoever of a felo de se.