For these reasons, we are of opinion that the said charter still remains in force, and that the Crown hath not power to appoint a particular Governor over this part of the province, or to assign lands to persons desirous to settle there; nor can the province grant those lands to private proprietors, without the approbation of the Crown, according to the charter.

August 11, 1731.

P. YORKE.

C. TALBOT.

(5.) JOINT OPINION of the Attorney and Solicitor General, SIR DUDLEY RYDER and SIR WILLIAM MURRAY, on the King's Right to make New Grants of Land in New Hampshire. 1752. [NEW HAMPSHIRE.-State of the case with respect to certain townships and tracts of land granted by the Governments of the Massachusetts Bay and Connecticut, in New England, which townships and tracts of land are now part of the province of New Hampshire, by the determination of the boundary-line between that province and the province of the Massachusetts Bay, in the year 1738.]

Disputes having for a long time subsisted between the provinces of the Massachusetts Bay and New Hampshire, with respect to

could not recover her, jure postliminii, but the marriage might be renewed by consent. Things taken by the enemy, when recaptured, reverted to their former owners. Arms, however, were not res postliminii, for it was a Roman maxim that they could not be honourably lost. A slave, who escaped from the enemy, became again the property of his master: see Dig. 28, tit. 15, § 5; Cic. de Orat. i. 100; pro Balbo ii. pro Cæcina, c. 34. According to modern law there is a difference between moveable and immoveable property as regards the jus postliminii. In maritime and land captures, when complete, it is excluded in the case of moveables, but applies in the case of real property. The purchaser of any portion of the national domain takes it at the peril of being evicted by the original sovereign, when he is restored to the possession of his dominion: see Wheaton's Internat. Law, 441 (n. 169 (9)) 495 (8th edit. by Dana); Woolsey, § 143; Kent's Comm. i. 108; Phillimore, i. 288 et seq.; Justinian's Institutes by Sandars, 124, 125, 175.

It has been held in the United States that a slave taken by his owner to a freesoil state, thereby became free, and could not be held to slavery on returning to the country of his owner, or to any other slave state: see Woolsey's Internat. Law, p. 70, note. In the case of the Creole, in 1841, some slaves who were being transported from one port of the United States, when the vessel was driven by

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their boundaries, in 1733 a petition was presented on behalf of the province of New Hampshire, praying that commissioners might be appointed to ascertain the boundaries.

Upon hearings of both parties before the Attorney and Solicitor General, the Board of Trade, and the Council, his Majesty was pleased, by his Order in Council of the 9th of February, 1736, to direct that a commission should be prepared and pass under the great seal, authorizing commissioners to mark out the dividing line between the provinces of the Massachusetts Bay and New Hampshire, giving liberty to either party therein, who thought themselves aggrieved, to appeal therefrom to his Majesty in Council. In pursuance of his Majesty's said commission, commissioners met and reported their determination specially, upon which both provinces appealed to his Majesty in Council; and afterwards their Lordships reported to his Majesty, as their opinion, that the northern boundaries of the Massachusetts Bay are and be, a similar curve-line, pursuing the course of Merrimac River, at three miles' distance from the north side thereof, beginning at the Atlantic Ocean, and ending at a point due north of a place in the plan returned by the said commissioners, called Pantuket Falls, and a straight line drawn from thence due west, crossing the said river till it meets with his Majesty's other Governments; and that the rest of the commissioners' said report or determination be affirmed by his Majesty. In 1738 his Majesty was pleased, with the advice of his Privy Council, to approve of their Lordships' report, and to confirm it accordingly; in consequence whereof, the line has been marked out.

In the years 1735 and 1736, while the appeals from both the Massachusetts Bay and New Hampshire were depending before his Majesty, the General Assembly of the Massachusetts Bay

stress of weather into a port of the Bahama Islands, escaped on shore, and the British Government refused to give them up as being free persons. It was intimated by the American Government that the law of nations exempts from foreign interference property in vessels driven into foreign ports by disasters of the sea, or carried there by unlawful force; but the argument was urged in vain.—Ibid. This, however, was not a case of jus postliminii. In truth there was no legal power in the Colonial or Imperial Government to order the slaves, who by landing had become free, to go back to the vessel; and in the eye of the English law they had been guilty of no crime.

granted above thirty townships between the rivers Merrimac and Connecticut, which townships, upon the running of the boundaryline in 1738, fell within the province of New Hampshire. The conditions of these grants were, that the grantees should settle the said townships within three years after the date of their respective grants; but this condition has been performed by very few, if by any, of the grantees; no obligation to pay quitrents, or a reservation of pine-trees fit for the service and supply of his Majesty's navy, are inserted in any of these grants, although no grant ought, in good policy, to be made of any lands in any part of North America, without both these provisions, which have been thought of so much importance and so absolutely necessary for the public service, that Mr. Wentworth, his Majesty's Governor of New Hampshire, was particularly instructed, in the year 1741, never to pass any grant of land, without enjoining express conditions of cultivation, the reservation of quitrents, and the preservation of such pines as are of size for the use of his Majesty's navy.

There are also about 60,000 acres of land situated on the west side of Connecticut River, which were purchased by private persons from the Government of Connecticut, to whom that land had been laid out by the Government of the Massachusetts Bay, as an equivalent for two or three townships which the Massachusetts Bay purchased from Connecticut Government. This tract of land, by the determination of the boundary-line in 1738, is become a part of New Hampshire, but the proprietors of it are subject to no conditions of improvement, and the land lies waste and uncultivated.

Question. Whether the Crown can resume the lands granted by the province of the Massachusetts Bay, under condition of cultivation, those lands being now become a part of New Hampshire, by the running of the boundary-line in 1738, in cases where the proprietors have not performed the condition of their grants; and if the Crown can, what is the most advisable and regular method of making such resumption? Whether, in the case of the lands granted away by the province of the Massachusetts Bay to particular persons, without any condition of cultivation, the Crown can now enforce the proprietors of such lands to cultivate them, or oblige them to take these lands under new grants, upon the said

lands being made a part of the Province of New Hampshire, by the determination of the boundary-line in 1738?

We are clearly of opinion the Crown may resume the lands granted on condition of settling within three years, where there has in fact been no settlement. With regard to lands granted by the Massachusetts Bay, without any such express condition, where there has been no settlement, as they appear now to have been no part of that province, their grants are in themselves void as against the Crown, and there appears no ground to support them but on the foot of the direction, which we find to have been given in an Order of Council of the 22nd of January, 1735, when the commission for marking the dividing line between the two provinces was first directed-viz., "that due care should be taken that private property might not be affected by it." We do not find that this direction was continued, either in the Order of the 9th of February, 1736, on which the present commission issued, or in the commission itself; or that the commissioners have, in their report, taken notice of any such private rights; or that they are saved in the Order of Council that establishes the boundary-line. However, considering the manifest intent of these sort of grants, whether appearing from the general nature or the particular recitals or considerations of them-that the country may be settled and inhabited, and the tacit condition attendant upon them; that the lands should be settled in a reasonable time-we think due care will be taken of the private property arising from these grants, if his Majesty shall be pleased to give these sort of proprietors a reasonable time to come in, and accept new grants upon terms of settling the lands within a certain time, reserving the old quitrent, and pines fit for his Majesty's navy; and in case of their not accepting these terms, his Majesty may resume the lands.

The proper manner of making such resumption after such default, is, by making new grants to such as shall be willing to accept them, at such rents and on such terms as shall be thought most advisable.

August 14, 1752.

D. RYDER.

W. MURRAY.

(6.) JOINT OPINION of the Attorney and Solicitor General, SIR DUDLEY RYDER and SIR JOHN STRANGE, concerning the Grants of Lands in Carolina, before and after the Purchase, by the King, of the Proprietors' Rights. 1737.

Quære 1st,-Whether any of the patents granted after their Lordships had ordered the Land Office to be shut up, can be deemed valid, other than such as were granted by order in London?

We are of opinion that such patents may be good, notwithstanding that order to shut up the Land Office, if the Lords Proprietors were either made privy to those grants, or after they were made received the consideration for them; otherwise, we think they cannot be supported.

2nd,-Whether such patents as were granted after the King's purchase by the Lords Proprietors' Governor, before the new Governor arrived from the Crown, particularly such as appears to have been entered in the secretaries' books after advice received in the province of the King's purchase, are to be deemed good?

We are of opinion that none of the patents mentioned in the second quære can be deemed good.

3rd,-Whether, as the Act of Parliament made upon the Crown's purchase from the Lords Proprietors, that clause in it that was for quitting possession of grants takes notice of such only as bore date before 1727? If it does not give room for a strict examination into all such as were issued subsequent to that time, and if such grants appear to have been irregularly made, they ought not to be voided; but as to such as were granted for defraying the expense of running the boundary-line, if the Crown, in such case, ought not to bear the expense?

We think it proper to observe, that the clause referred to in this quære does not put it upon the patents bearing date, but being actually made before 1st January, 1727; and considering the extraordinary circumstances attending these grants, and that the Crown had no notice of them at the time of the purchase, there is great reason for a strict inquiry into the validity thereof, and to avoid them for such irregularities. But as those that were granted for defraying the expense of the boundary-line seem to stand in a much more favourable light, we think it reasonable some indulgence