trial or trials the said Allen did insist that the matters of fact should be specially found by the juries, that he should do all which in him lay that the matters of fact should be specially found accordingly.

On the 20th of February, 1703-4, Colonel Dudley acquainted the Assembly of New Hampshire with the orders he had received relative to Mr. Allen's title; upon which the Assembly addressed him to represent to her Majesty that they were sensible of her regard to justice in the late trial between Mr. Allen and Mr. Waldron, which had for ever obliged them to a sense of, and resolution in, their duty and obedience to her Majesty; that they only claimed the property of such land as was contained within the bounds of their towns, which was less than one-third part of the province, and had been possessed by them and their ancestors for more than sixty years; and that they had no objection to the other two-thirds being adjudged to Mr. Allen.

On the 3rd of May, 1705, the inhabitants and terre tenants of the province, at a general meeting held at Portsmouth, came to the following resolutions with respect to Mr. Allen's title :

"That they had not, on behalf of themselves, nor any the inhabitants of this province (whom they represented), any challenge or claim to any part of this province extra the bounds of the four towns of Portsmouth, Hampton, Dover, and Exeter, with the hamlets of Newcastle and Kingstown, &c., appertaining, which were all comprehended by a line on the western part of Dover, Exeter, and Kingstown, already known and laid out, and should be forthwith revised; but the said Samuel Allen, Esq., his heirs and assigns, might peaceably hold and enjoy the said great waste, containing forty miles in length, and twenty miles in breadth, or thereabouts, at the heads of the towns aforesaid, if so should please her Majesty; and that the inhabitants of this province, at all times, should be so far from giving interruption to the settlement thereof, that they declared on their behalf, and by the power given them, that they desired, by all means, that the waste might be planted and filled with inhabitants, the lands being very capable thereof, to whom they would all give their assistance and encouragement as far as they were able.

"That in case Samuel Allen should, for himself, his heirs, exe

cutors, &c., for ever quit-claim unto the present inhabitants, their heirs and assigns, for ever, of all that tract of land, and every part and parcel thereof, with all privileges, &c., situate, lying, and being within the several towns in this province, to the extents of the bounds thereof; and also warrant and defend the same to the inhabitants against all manner of persons whatever, free from mortgage, entailment, and all other manner of incumbrances, and that this agreement, and the lands therein contained, should be accepted and confirmed by her Majesty; then, and in such case, they agreed to allot and lay out unto Samuel Allen, his heirs and assigns, for ever, 500 acres of land out of the townships of Portsmouth and Newcastle, 1500 acres out of the township of Dover, 1500 acres out of the townships of Hampton and Kingstown, and 1500 acres out of the township of Exeter; all which lands should be laid out to him, the said Samuel Allen, out of the commonages of the respective towns, in such place or places (not exceeding three places in a town) as should be most convenient for Mr. Allen, and least detrimental to the inhabitants of the town.

"And further, they agreed to pay to Samuel Allen, his heirs or assigns, £2000 current money of New England-that is to say, £1000 within twelve months after the receipt of her Majesty's confirmation of this their agreement, and the other £1000 within twelve months after the first payment.

"And further, that all contracts and bargains formerly made between Mr. Mason and Mr. Allen, with any the inhabitants, or other her Majesty's subjects, which were bonâ fide, for lands or other privileges, in the possession of their tenants, in their own just right, besides the claim of Mr. Mason or Mr. Allen, and no other, should be accounted good and valid by these articles; but, if any, the purchasers, lessees, or tenants should refuse to pay their just part of what money should be agreed to be paid, referring to this affair in equal proportion with the rest of the inhabitants, according to the land they hold, then their share should be abated by Mr. Allen out of the £2000 payable to him by this agreement.

"And further, that upon Mr. Allen's acceptance and underwriting of these articles, they promised to give good personal security for the payments abovesaid.

"And further, that all actions and suits in the law depending, or thereafter to be brought, concerning the premises, should cease and determine, and be void, until her Majesty's pleasure should be further known therein."

These propositions having been finally settled and agreed to, were ordered to be presented to Mr. Allen for his acceptance; but his death, which happened on the next day, prevented it.

Upon the death of Colonel Allen, his son, Thomas Allen, petitioned the Crown that an appeal brought by his father to the Governor and Council against a judgment given in the inferior Courts in favour of Waldron, might be revived; which petition having been referred to the Attorney General for his opinion, whether it might be proper for her Majesty to grant the prayer thereof, the Attorney General, on the 23rd of March, 1705-6, reported his opinion, that, by the plaintiff's death, the writ of error was abated, and could not be revived.

Upon Mr. Allen's suing for writs of ejectment in his own name, he was cast with costs, whereupon he appealed to her Majesty in Council; but died before the appeal was determined, having first, by deed of sale dated the 28th of August, 1706, conveyed one half of his lands to Sir Charles Hobby, of Boston, in New England.

Upon the death of Mr. Allen, the half of New Hampshire which remained unsold devolved to two infant sons, but it does not appear that any application was ever made since that time by them, or any one in their behalf, or by any claiming under them, to be put in possession; and in the year 1716 Colonel Shute was appointed Governor of New England, with a power, in his commission, of granting lands in New Hampshire, in consequence whereof several townships were laid out; nor does it appear that any claim of property was set up until the year 1746, when John Tufton, who had taken upon him the name of John Mason, and who is one of the surviving grandsons of Robert Mason, pretending that the fine and recovery, sued out in Westminster Hall by John and Robert Mason, in 1691, previous to the conveyance by them to Samuel Allen, was illegal, as it ought to have been done in the Courts there, himself sued out a common recovery in the Courts of New Hampshire, in consequence whereof the sheriff put him in

possession, and he sells his right by deeds to sundry persons in the province, who have taken upon them to grant lands, and lay out townships.

Question.-Whether the uniform silence and discontinuance of all sort of claim to the waste and unimproved lands, within the province of New Hampshire, for more than forty years successively, during the greater part of which time the Crown has occasionally made several grants of the unimproved lands of the said province, without exception or complaint from any person or family, does not prescriptively vest the waste lands of the province in the Crown? And how far can any private claim to these lands, so long deserted, be now revived against such an exercise of power over them in the Crown? If these waste lands are not in the Crown, to whom do they belong? And what will be the regular and best method of bringing this matter to a final legal determination?

It is impossible to give an answer to this quære without knowing many circumstances not appearing upon the state of this

case.

First. It is asked to whom these lands belong? They were originally granted to Mason; they were afterwards conveyed to Allen. Whether that conveyance be good, depends upon the will of John Mason, not particularly stated; upon the fine and recovery said to have been levied and suffered, not particularly stated; upon the usage or laws in New Hampshire, in relation to barring estates tail, not stated at all; upon the infancy or other disability of the issue in tail; his acquiescence; the acts of limitation in New Hampshire, none of which matters are before us.

Second. It is asked, whether they belong to the Crown? We suppose, upon this ground, that neither the Masons nor Allens, for forty years past, have done anything till 1746. This depends upon a variety of circumstances: the nature and causes of the acquiescence; the acts done by the Crown in the meantime; the kind of possession taken in 1746; and what has been done since. We can only say that where persons, under grants from the Crown, have quietly possessed and improved, so great regard is always had to persons who have settled lands in America, that it is hardly possible for a stale title to be so circumstanced as to pre

vail against them; and here the length of time during which they have been permitted to improve is extremely material.

Upon the whole, we cannot advise anything so proper, as that the parties, if any suits are commenced in New Hampshire, should take care to have the evidence so laid before the Court, as to be transmitted over to England, in case of an appeal to the King in Council.

August 7, 1752.

D. RYDER. W. MURRAY.

(4.) Extract from the JOINT OPINION of the Attorney and Solicitor General, SIR PHILIP YORKE and CHARLES TALBOT, on the question whether the King's Right to the Lands of Pemaquid remain in the Crown. 1731.

As to the question, stated in the Case, upon the effect of the conquest of this tract of country by the French, and the reconquest thereof by General Nicholson, we conceive that the said tract, not having been yielded by the Crown of England to France by any treaty, the conquest thereof by the French created, according to the law of nations, only a suspension of the property of the former owners, and not an extinguishment of it; and that, upon the reconquest by General Nicholson, all the ancient right, both of the province and of private persons, subjects of the Crown of Great Britain, did revive, and were restored jure postliminii (1). This rule holds the more strongly in the present case, in regard, it appears by the affidavits, that the province joined their forces to those which came thither, under the command of General Nicholson, in this service.

(1) The Jus Postliminii in the Roman law was the right of recovering a thing lost to an enemy in war, and there were two heads of postliminium; for, as Pomponius says, "A man may either return himself or recover something:" Dig. 49, tit. 15, § 14. Cicero, in his Topica II., discusses the etymology of the word, and says that Servius considered the liminium merely as a prolongation of post, while Scævola derived it from post and limen: “ut quæ a nobis alienata sunt, cum ad hostem pervenerint et ex suo tamquam limine exierint, dein cum redierint post ad idem limen, postliminio videantur rediisse." If a Roman citizen was captured in war, he became a slave, and suffered a diminutio capitis maxima. His rights over his children were said to be in abeyance, but revived on his return, jure postliminii. As to a wife the case was different; and the husband