Page:Prerogatives of the Crown.djvu/58

 58 Prerogatives where exerciseable. [Ch. III. it seems that even during the existence of a charter the King may take it away, and grant fresh powers to another, in cases of positive necessity, and upon an extraordinary exigency, hap- pening through the default or neglect of a proprietor of a co- lony, or of those appointed by him, or their inability to pro- tect or defend the inhabitants in times of war or imminent danger ; but in such case previous civil rights remain, and must be respected [a). In this case also, and in others where a charter to a colony is forfeited, an inquisition and scire facias to repeal should regularly be adopted [b). If the King lose a territory acquired by conquest, and recon- quer it, the former rights of the inhabitants, under charters granted by the Crown, revive and are restored, jure posilzminii s a conquest by an enemy merely operating as a suspension, not as an extinguishment, of the rights of former owners (c). In the case of Penn v. Lord Baltimore (£?), it was ingeniously contended, that a colonial province being a proprietary go- vernment and feudal seigniory held of the Crown, which has the sovereign dominion, the parties holding under charters from the King have no power to vary or settle the boundaries by their own act ; for such agreement to settle boundaries and to convey in consequence, amounts to an alienation, which these lords proprietors cannot do ; and that, even supposing they might alien entirely, they cannot alien a parcel, as that is dismembering. But Lord Chancellor Hardwicke held other- wise, and considered that the subordinate proprietors might, hondjide, and without fraud, legally agree how they would hold their rights and settle boundaries between themselves; and that they, holding in fee, might even alien the lands to natu- ral-born subjects without the royal licence, unless expressly restrained. His Lordship held, however, that the proprietors could not dismember their provinces, so as to alter the nature of tlie thing granted, and thereby bind the Crown of whom they held ; for the tenure and services would still remain on the whole, and the Crown might demand the whole services of either. In this great case it was also laid down, that, though the ex- clusive and original jurisdiction over questions relative to boundaries between provinces and the dominion, &c. therein, (a) 1 Chalm. 31. 29. ISJB, 9. (c) Ibid. 108. {i) Ibid, and 108. (</) 1 Vez. sen. 444. is