parts in six of what the parties enjoyed. However, His Majesty being entitled under four, to four parts of the government, which is entire, he may execute the whole. And I do not know, that the other two can be copartners with his Majesty in governing; for which reason, and that there might not be an extinguishment, by surrender, I apprehend, as this case is, a grant to the Crown of the four parts might be more proper.

December 10, 1717.

EDW. NORTHEY.

(6.) On the King's Right to the three lower Counties on Delaware, by Attorney and Solicitor-General, Northey, and Thompson.

SIR: The Lords Commissioners for Trade and Plantations having, by your letter of the 13th February last, required our opinion on the petition of the Earl of Sutherland, praying for a Charter of certain lands lying upon Delaware Bay, in America, commonly called the Three Lower Counties, whether it be in the power of the Crown to dispose of those lands petitioned for; which petition had been referred to their Lordships by His Majesty; and His Majesty having been also pleased to refer the said petition to us, we have made our report thereon to His Majesty, and enclosed, have sent you a copy of the said report, which may serve for an answer to the question proposed to us by their Lordships.

October 28, 1717.

To the King's most excellent Majesty.

May it please your Majesty ;

EDW. NORTHEY, W. THOMPSON.

In humble obedience to your Majesty's commands, signified to your Majesty's Attorney-General, by the

Lord Viscount Stanhope, when Secretary of State, on the memorial of the Right Honorable John, Earl of Sutherland, and your Majesty having been pleased also to signify your commands by Mr. Methuen, when Secretary of State, to refer the said memorial to your Majesty's Solicitor-General, we have jointly considered of the said memorial, whereby the said Earl of Sutherland represents to your Majesty: that there are considerable arrears due to him, since the revolution, amounting to above £20,000; that he has always testified his great zeal and activity for the Protestant succession, both before and since your Majesty's happy accession to the throne, and given singular proofs of his fidelity and affection to your Majesty, by his services in North Britain during the rebellion there; in consideration whereof your Majesty was pleased to express your favorable intentions of gratifying him upon any occasion: wherefore, he most humbly prays your Majesty will be graciously pleased to grant him a Charter of certain lands lying upon Delaware Bay, in America, commonly called the Three Lower Counties, which he represents he is ready to prove do belong to the Crown. And we have given notice thereof to the persons concerned for William Penn, Esq., and several mortgagees and purchasers under him; and also to the Lord Baltimore, who severally claim title to the said lower Counties, being called Newcastle, Kent and Sussex. And we have heard them and their agents, thereupon, and we do most humbly certify your Majesty, that the said William Penn is entitled, under the grant of King Charles the Second, to the plantation of Pennsylvania; but that these counties are not included in such grant, and his title to Pennsylvania is not now contested.

And as to your Majesty's title, which the Earl of Sutherland has undertaken to make out, to the said Three Lower Counties, he has insisted that the same were gained by conquest, by the subjects of your Majesty's predecessors, or granted to your Majesty's predecessers by the possessors thereof, and that thereby your Majesty's predecessors became entitled to the same; for that a subject of the Crown could not make foreign acquisitions by conquest, but for the benefit of the Crown; and that the length of possession will be no bar to the Crown; that for several years past Mr. Penn hath had the possession of the said Lower Counties, under a pretense of a grant thereof to him, made in the year 1682, by the late King James, when Duke of York, who then had the possession of New York and the said Three Lower Counties; but had no right to the said Lower Counties, and therefore could not transfer any right in the same, to the said Mr. Penn, which appears; for that the said late King, afterwards, when Duke of York in the

year 1683, obtained a warrant from the then King, Charles the Second, to pass a patent whereby the said Three Lower Counties should have been granted to the said then Duke of York, and a copy of the bill to pass into a grant in April 1683, to the said James Duke of York, of the said Three Lower Counties, has been produced by the said Earl of Sutherland; and it is alleged the same was never passed into a grant; and that if the same had passed into a grant, it would not have made Mr. Penn's title to the said Three Lower Counties to be good, the title of the said Mr. Penn under the Duke of York, being precedent to the title of the said Duke of York; but that the same did remain in the said Duke of York, and is, consequently, now in your Majesty.

And that your Majesty's title further appears; for that, after, in May 1683, when the then Lord Baltimore, by petition, opposed the passing the said bill under the great seal, Mr. Penn then appeared against the said Lord Baltimore, as agent for the Crown, and not on behalf of himself; and Mr. Penn, under his hand, has declared that your Majesty's royal approbation and allowance of the Deputy-Governor of Pennsylvania, and the Three Lower Counties on Delaware River, named by him, shall not be construed to diminish or set aside the right claimed by the Crown, to the said Three Lower Counties.

Besides, the said Earl of Sutherland insists, that in the grant of the said Duke of York, in 1682, to Mr. Penn, of the said Three Lower Counties, there is a reservation of an account to be made of one moiety of the profits of the lands thereby granted, touching which, no account has yet been rendered by Mr. Penn; and that, therefore, if the said grant, in 1682, were effectual, the said Mr. Penn is yet accountable to your Majesty, for the moiety of all the profits of the lands so granted, from the year 1682, according to the said reservation; and that, if the said Earl of Sutherland cannot, by your Majesty's favor, be entitled to the said Three Lower Counties, he humbly prays he may have the benefit of the said account.

In answer to which, on the behalf of Mr. Penn's mortgagees and other purchasers under him, it hath been alleged, that the late King James the Second, when Duke of York, was seized in fee of the said Three Lower Counties; and as one argument to prove such seizin, they have produced letters patent, dated the 29th day of June, 26 Car. II., whereby his said late Majesty, King

Charles the Second, granted to the said James, late Duke of York, his heirs and assigns, all that part of the main land of New England, beginning at a certain place called or known by the name of St. Croix, next adjoining to New Scotland, in America, and from thence extending along the sea-coast unto a certain place called Pemaquinue or Pemaquid, and so up the river thereof, to the further head of the same, as it tendeth northward, and extending from the river of Kinebequim, and so upwards by the shortest course, to the river Canada, northwards; and all that island or islands, commonly called by the several name or names of Matewaicks or Long Island, situate and being towards the west of Cape Codd, and the Narro Higansetts, abutting upon the main land, between the two rivers there called or known, by the several names of Connecticut and Hudson River, together, also, with the said river called Hudson's River, and all the lands from the west side of Connecticut River to the east side of Delaware Bay, and also, all those several islands called or known by the name of Martin Viniard and Nantacks, otherwise Nantukett, together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, hunting and fowling, and all other royalties, profits, commodities and hereditaments to the said several islands, lands and premises belonging and appertaining, with their and every of their appurtenances; and all his said late Majesty's estate, right, title and interest, benefit, advantage, claim and demand, of, in, or to the said lands and premises, or any part or parcel thereof, and the reversion and reversions, remainder and remainders, together with the yearly and other rents, revenues and profits of the premises, and of every