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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 holdeu 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 graut 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, W. Garrow.
&c. &c. &c. 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 coronse, 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, J. Campbell.
&c. &c. &c. R. M. Rolfe.
(11.) Opinion of tlie 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.
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 rig] it, and to put the forfeitures for treason in other hands.
(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
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.
November 30, 1723.
(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