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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 enumeration, 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, J. S. CorLEV.
&c. &c. &c. • C. Wethehei.l.
(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
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
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. Noethey.
(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
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 iu 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 afelo de se shall not pass thereby?
As to which we are of opinion that, by the grant of Jelons' 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 debtsjr 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.
The second question is: Whether fines imposed by the King's court upon persons residing within the said territory for contempt or otherwise shall not pass by the said letters patent; and what fines pass thereby?
As to this we are of opinion that no other fines pass thereby but such as are imposed by the King's courts held within the said territory; the fines imposed at the courts leet of the grantees are expressly granted to them by the letters patent of King Charles II.; and the fines imposed by the King's courts held without the said territory cannot, with propriety, be said to arise or accrue with the sarue.
The third question is: What shall pass by the word forfeitures in the said letters patent?
As to this, we are of opinion that all goods and chattels, real and personal, in possession, being within the said territory, and forfeited by reason of any judgment or convictions for misdemeanor or felony, and all interests in any lands lying within the said territory forfeited to the Crown by any attainder of felony, do pass by the word forfeitures; but this word is so general and extensive, aud the cases which may arise upon it so various, that it is impossible to give an opinion thereupon, which may answer every event, without having the particular facts stated.
The only question contained in Major Drisdale's letter is: How far the Governor of Virginia may exercise the authority given him by his Majesty in pardoning offences and remitting forfeitures arising in the Northern Neck?
As to which we are of opinion, that nothing contained in the said letters patent restrain him from exercising the authority of pardoning such offences; and if the pardon be granted before any forfeiture incurred by judgment in eases of misdemeanor, or by flight, conviction, or judgment in cases of felony, the pardon will prevent any forfeiture; but if the pardon be granted after the forfeiture actually incurred by any of the means aforesaid, though the offence will be thereby discharged, the right of the grantees to the things forfeited will continue.
August 12, 1727. C. Talbot.
(18.) Opinion of the Solicitor General, Sir William ThomSon, on the King's prerogative of prohibiting his Subjects from going abroad. 1718.
Sir,—In obedience to the commands of the Lords Commissioners of Trade and Plantations, signified by yours received this day, 1 have perused the letters therein inclosed. The King may prohibit his subjects from going out of the realm without license, and the 5th of Richard 2, c. 2, forbids all persons to depart the realm without license, except those sort of persons mentioned therein. As to the particular persons intending to go abroad, a writ will be granted from the chancery, upon a suggestion of such intention, to prohibit them from going abroad, and security may be required by virtue thereof that they will not depart the realm without license, which, if they refuse, they may be committed till sufficient security is found. As to those already abroad, if they are required by proclamation to return home, and do not obey, I do not know of any method of getting at them by any process abroad; but it is proper that the King's minister, residing in the country where they inhabit, do require that they may be made to depart that country in order to their return.
November 12,1718. Wm. Thomson.
(19.) Opinion of the Attorney General, Sir Archibald Macdonald, as to how far the King may restrain his Subjects from going abroad. 1788.
A case of so much importance as the present, and not very frequently occurring, would require more investigation than the unavoidable shortness of the time permits me to make; nevertheless, certain established principles furnish conclusions which, in my judgment, forcibly apply to it.
The questions must be—first, whether the British seamen found on board of the Friendship have committed any, and what offence, and how it is punishable? Secondly, whether Brough, Taylor, and Rising have committed any, and what offence, and how that is punishable? Thirdly, whether, in case an action should be brought on account of the detention, there be a good defence to it?