| 17
that the then Lord Baltimore was not in favor with the
ministry of James II.
What is called the Hopton grant was confirmed to the
Earl of St. Albans and others in 1667 by Charles II. It
included ail the land between the Rappabanock and the
Potomac, together with the islands within the banks o, f those
rivers and the rivers themselves. The rights of the original
grantees became vested in Lord Fairfax and his beirs, who
sold large portions of it, and as to the rest, the Common-
wealth first took it by forfeiture and afterwards bought out
the Fairfax title from the alienees of his heirs. It is not
pretended that this grant could, proprio vigore, transfer the
title of the Potomac islands from Lord Baltimore to the
Earl of St. Albans; but it is argued that, as Lord Balti-
more must have known of it, and did not protest or take
any measure to have it canceled, his silence, if not con-
clusive against him by way of equitable estoppel, was at
least an admission that he did not own the islands or the
bed of the river -in which they lay. We answer that he
bad a right to be silent if he chose; his elder and better
title, which was a public act, seen and known of all men,
spoke for him loudly enough. Besides that, his subse-
quent possession of the islands was the most emphatic
contradiction he could give to any adverse claim, or pre-
tense of claim, under the Hopton grant.
But these conflicting grants of the islands increased
the importance of knowing how and by whom they had
been occupied. The exclusive possession of Maryland was
affirmed and denied upon evidence so uncertain that we
thought it right to postpone our determination for several
weeks, so as to give time for the collection of proper
proofs. When these came forth they showed satisfactorily
that Maryland had granted all the islands, taxed the
owners, and otherwise exercised proprietary and political
dominion over themJ1 Three Virginia grants were pro-
duced which purported to be for islands in the Potomac,
but on examination of the surveys it appeared that they
vrere not in, but upon, the river. One is in Nomini bay, and
2
|
