Vindication of the rights and titles, political and territorial, of Alexander, Earl of Stirling & Dovan, and Lord Proprietor of Canada and Nova Scotia

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Appendix

Opinion of A. H. Lawrence, Esq., of Washingto?i, D. C, Counsellor at Law.

Bethlehem, Pa., June 23, 1853.

John L. Hayes, Esa.

Washington, D. C.

Dear Sir: I have received yours of the 21st inst. in respect to the case of Lord Stirling. I had previously given to the legal questions a pretty thorough examination, and am convinced that the claims of the present Earl are legally of the strongest character. But as the papers are so voluminous, and the authorities so numerous, it would require both time and space to write out an opinion which would do justice either to one's self or the case, I have thought best merely to hint (for the present) at the points which present themselves on a more careful view.

As to the authenticity of the grants to the original Earl of Stirling, I suppose there can be no rational doubt. They are matters of undoubted history.

The questions, then, as i conceive, are these: 1st. Is the present claimant of the title and estate the real heir, lineally descended from the original grantee? 2d. If so, have his rights been lost by neghgence or want of possession ? There are some subordinate questions embraced in these to which I shall presently" allude ; but I think it may be safely assumed that if the grants were genuine, and the present claimant is the heir of the original grantee, and that he has not lost his rights by laches, that then he has a subsisting legal title to all the lands included in the grants which have not been disposed of by the grantee or his heirs.

1st. Is the present clamiant the right heir of the original grantee? It appears from the papers that the present claimant obtained two verdicts of juries upon the question of his heirship to that original grantee. Lord Stirling, These verdicts were given by juries summoned according to the Scottish law. In a proceeding called (I think) the "service of an heir," a jurisdiction particularly and especially provided for the trial of the fact of heirship, where any question is made as to the 6 heirship of any one claiming to be heir of another. In Erskine's Institutes, and in Bell's Scotch Law Dictionary, this proceeding is particularly described ; and from these books it will be seen that it is a special jurisdiction, for the trial of that particular issue. Now the law, I think, is well settled, that when a court, having jurisdiction, had pronounced upon the status of an individual, it is conclusive as to such status everywhere and alwa5^s. It is like a judgment in rem in admiralty; or a judgment as to the validity of a marriage, or the legitivnacy of a child, in the ecclesiastical courts, (where th^y have jurisdiction.) Indeed, it don't differ from the effect of any other judgment, for all judgments of competent courts are conclusive as to the particular subject matter in controversy; and in these cases the subject matter is the status, the validity of the marriage or the legitimacy of the child. I think this doctrine is laid down in the Duchess of Kingston's case, in the State trials, 20lh volume, I believe. [See Sto. Conf. Laws, Foreign Judgments.] Of course it will be necessary for the present claimant to show in this country that he is the person who obtained those verdicts ; and upon that the question of his heirship must be taken as established.

2d. As to Lord Stirling having lost his rights by laches. In the first place, tiie grants themselves, so far as the British Crown is concerned, have, by every possible variety of phraseology, attempted to exclude every conclusion of fact or of law against the gra^ntee fro?n not taking possessio?i; so that the British Government at least would be stopped from setting up this objection. The country was looked upon in the grants, as it was in reality, as a wilderness, of which no use could be made and no actual possession taken. Then as to the lands in Maine. We take for granted that the State will relinquish to Lord Stirling any of his lands which she holds, without insisting upon her immunity from being sued, if she is satisfied that, in point of law, the lands belong to Lord Stirling. As to these lands* the statute of limitations of the State would be no bar; because, if Lord Stirling could sue the State, he was beyond seas, and excepted frorn the statute. If he could not sue the State, then he was not within the statute, because he had no right of action accrued, which is the point from which statutes of limitation run.

But, again, suppose that a title to these lands could have been acquired by adverse possession, still the fisheries would not go as parcel of that possession. The fisheries were granted not as appurtenant to the lands, but as a special personal privilege ; and if they had been granted as appurtenant to the lands, it was a special appurtenance to the lands made

SO by grant and not by force of law, and I think could not be acquired by mere adverse possession of the lands.

Upon the whole, 1 am of opinion that the title of the present claimant is sound in law, and that he ought to recover the lands. I have written these hints hastily and informally, though I have bestowed a good deal of labor in the examination.

Very respectfully,

Your ob't servant.

Signed, A. H. LAWRENCE.

[translation.] INSTRUMENT OF SEISIN

IN FAVOR OF

ALEXANDER, EARL OF STIRLING AND DOVAN,

OF THE LORDSHIP AND BARONY OF NOVA SCOTIA IN AMERICA, COMPREHENDING THE LANDS, ISLANDS, AND OTHERS, AFTER MENTIONED.

IN THE NAME OF GOD, Amen. Be it known to all men by this persent public instrument, That on the 8th day of July, in the year of our Lord 1831, and of the reign of our sovereign lord, William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, the second year, In presence of me, notary public, clerk of the sheriffdom of Edinburgh, and the witnesses subscribing, appeared personally Ephraim Lockhart, writer to his Majesty's signet, attorney for and in name of the Right Honorable Alexander Earl of Stirling and Dovan, great-great-great grandson of the deceased Sir William Alexander of Menstrie, Knight, the first Earl of Stirling, whose power of attorney was sufficiently known to me, the undersigned notary-public ; and passed with us and with Adam Duff, Esquire, advocate, Sheriff-depute of the sheriffdom of Edinburgh, specially constituted by the precept of seisin under inserted, to the Castle of Edinburgh, where by the said precept seisin is to be taken for all and whole the country and others under mentioned, having and holding in his hands the preempt of seisin under inserted, directed forth of our sovereign lord the King's chancery in favor of the said Alexander Earl of Stirling and Dovan, as nearest and lawful heir served and retoured to the said William Earl of Stirling, his great-great-great grandfather, for giving seisin to him of all and sundry the lands and others after mentioned, contained in the said precept of seisin under inserted ; which precept of seisin the foresaid attorney, in the name of the aforesaid Alexander Earl of Stirling and Dovan, exhibited and presented to the said Adam Duff, Sheriff aforesaid, and desired him to proceed to the execution of the said precept of seisin, agreeably to the tenor thereof; which desire the said sheriff finding to be just and reasonable, he received the said precept of seisin into his hands, and delivered it to me, the undersigned notary-public, to be read, published and explained, in the common speech, to the witnesses present ; which I did, and of which precept of seisin the tfenor follows in these words :

" WILLIAM THE Fourth, by the grace of God of the United Kingdom of ' Great Britain and Ireland, King, Defender of the Faith, to the Sheriff of ' Edinburgh and his Bailies, Greeting. Forasmuch as it is found, by an inquest ' made by our command, by George Tait, Esquire, Sheriff-substitute of the ' sheriffdom of Edinburgh, as sheriff for that effect, specially constituted, in ' virtue of a commission under the testimonial of the seal, therein specified, and ' retoured to our chancery, That the deceased Sir William Alexander of Men- ' strie. Knight, the first Earl of Stirling, great-great-great grandfather of the ' Right Honorable Alexander Earl of Stirling and Dovan, Viscount 6f Stirling 'and Canada, Lord Alexander of Tullibodie, &c., bearer hereof, died at the ' faith and peace of the King, last vest and seised as of fee in all and sundry the ' lands, continents and islands situate and lying in America, within the head or ' cape commonly called Cap de Sable, lying near the latitude of forty-three de- ' grees north fiom the equinoctial line, or thereabouts, from which cape towards ' the sea-coast verging to the west, to the naval station of St. Mary, commonly ' called St. Mary's Bay, and thereafter northwards by a straight line passing

APPE^'DIx. 45

' the inlet or mouth of thai great naral Elation which runs out into the eastern tract of land between the countries of the Suriqnois and Stechemines, to the rirer commonly called of St. Croix, and to the farthest source or fonntain head thereof on the western part, which nrst unites itself wiih the foresaid liTer, whence, by an imaginary straight line, conceired to proceed oTerland, or run northward's, to the nearest naral station, river or sotirce discharging itself into the great river of Canada, and from it proceeding eastwards by the coasts of the said river of Canada to the river, naval station, port or shore commonly known and ealled by the name of Gathepe or Gaspe, and thereafter towards the southeast to the islands called Bacalaos, or Cape Breton, leaving the said islands on the right, and the gulf of the said great river of Canada, oi gxeai naval station, and the lands of Xewfoundland, with the islands belonging to these lands, on the left, and thereafter to the head or ea.p& of Cape Breton foresaid, lying near the latitude of forty-nve degrees or thereabouts, and from the said cape of Cape Breton towards the south-west, to the foresaid Cap de Sable, where the perambulation began, including and comprehending within the said coasts, and their circumference from sea to sea, all the lands and continents, with the rivers, broois, bays, shores, islands or seas, lying near or within six leaau es of any part of the same, on the western, northem, or eastern sides of the coasts, and predncts thereof, and on the south-east, (where lies Cape Breton.) and on the southern part of the same, (where is Cap de Sable.) all the seas and islands southwards within forty leagues of the said coasts thereof, including the great island commonly ealled Isle de Sable or Sab- Ion, lying towards the south-south-east, in the sea, abont thirty leagues from Cape Breton foresaid, and being in the latitude of forty-four degrees or thereabouts; which lands foresaid should in all time to come enjoy the name of Nova Scotia in America; Which also were vested in William, the said Earl of Stirling, according to a charter of novodamus under the great seal of the Mngdom of Scotland, dated the 12th day of July anno Domini 1625, made, given and zrdjjiei by Charles, Ejng of Great Britain, France and Ireland, in favour of the said William Earl of Stirling, (then and throughout named Sir William Alesander,) his heirs and assigns whaTsoever, heritably : And by which rharter it is declared, that the foresaid William Earl of Stirling shoiild divide the foresaid Izjilf- iz:: r'arts and pornons as should seem to him m, and bestow names on then a: i .risure : Toeether with all mines, as well royal of gold and silver, as other — ''-- of iron, lead, copper, tin, brass, and other minerals whatsoever.

"with the power of digging and causing dig irom the land, purifying and refining the same, and converting and using them to his own proper use , or other OSes whatsoever, as should seem nt to the said William Earl of Stirling, his heirs or ass;gsE, or to those who, in their place, should happen to settle in the said lands : Reserving only to his said Majesty and his successors the tenth part of the metal, commonly ealled ore of gold and silver, that shall afterwards be dug or gained out of the earth : Leaving to tbe said William Earl of Stirling, and his foresaids, whaisoerer his said Majesty, and his sueeessois, might in any way demand of other metals, copper, steel, iron, tin, lead, or other minerEls. that they may so much the mere easily bear the great chargss cf estracting the foresaid meials, together with pearls and other precious stenes whatsctever, quarries, woods, copses, mosses, marshes, lakes, waters, FEHESiEs, as weB in salt water as in fresh, of royal nshes as of others, hunting, hawking, eoiDmodities and hereditaments whatsoever : Together with mQ t'Ower, privilege and jorisdiciiDn cf free regality and chancery ibr ever: and with the sifi and lieht of oatronase of churches, chapels and benenees, with tenant

Justiciary and Aamiralry respectively, within the beunds above mentioned resp-ectrrelv : To&stheh 'also with the power of erecting corporations, free boroughs, free pons, towns and boroughs of barony, and of appointing m.STkets and feirs within the bounds of the said lands, and of^iioldin? courts of TTisiiciary and admiraliv within the boundaries of the said lands, nvers. pons and seas: together also with the power of imposing, levying and receivong aJ tolls, customs, anchorages, and other does of the said boroughs, marieis, sirs and free pcH^ and of posessing artrl enjoying the same as freely in all respects as any greater or lesser baron in the kingdom of Scotland has enjoyed, or shall be able to enjoy them, at any time past or to come; with all other prerogatives, privileges, immunities, dignities, casualties, profits and duties belonging and pertaining to the said lands, seas, and bounds of the same ; and virhich his said Majesty shall have power to give and grant, as freely and in as ample form as he himself or any of his noble progenitors has granted any charters, letters patent, infeftments, gifts, or patents, to any subject of whatsoever degree or quality, to any society or community, planting such colonies in whatsoever foreign parts, or exploring foreign lands, in equally free and ample form as if the same were inserted in the said charter: Making, constituting and appointing the said William Earl of Stirling, his heirs or assigns, or their deputies, his said Majesty's Hereditary Lieutenants-general, to represent his royal person, as well by sea as by land, in the countries, sea-coasts and boundaries foresaid, in repairing to the said lands, so long as he shall continue there, and in returning from the same ; to govern, rule, punish and pardon all subjects of his said Majesty who shall have happened to go to the said lands, or to be inhabiting the same, or who shall have engaged in trade with them, or shall remain in the same places, and to be favourable to them; and to establish such laws, statutes, constitutions, regulations, instructions, forms of government, and ceremonies of magistracies within the said bounds, as to him, William Earl of Stirling, or his foresaids, for the government of the said country and its inhabitants, in all causes, criminal as well as civil, shall seem fit; and to alter and change the said laws, regulations, forms and ceremonies, as often as he, or his foresaids, for the good and advantage of the said country, shall be pleased, so that the said laws were consistent, as much as they could be made, with ihe laws of the said kingdom of Scotland; And giving and granting free and plenary power to the foresaid William Earl of Stirling, and his foresaids, of conferring favours, privileges, employments and honours upon deserving persons, with full power to those, or any of them, who shall have happened to make covenants or contracts for the said lands with him, William Earl of Stirling, and his foresaids, under the

subscription of himself or of his foresaids, and the seal mentioned in the said charter, of disponing and ovei'giving any portion or portions of the said lands, ports, naval stations, rivers, or any part of the premises; of erecting also inventions of all sorts, arts, faculties, or sciences, or of practising the same in whole or in part as to him, for their good, shall seem fit; also of giving granting and bestowing such offices, titles, rights and powers as to him shall appear necessary, according to the qualities, conditions and merits of ihe persons; With power to the said William Earl of Stirling, and his heirs and assigns, of erecting, founding and constructing common schools, colleges and universities, sufficiently provided with able and sufficient masters, rectors, regents, professors of all sciences, learning, languages and instruction, and of providing for sufficient maintenance, salaries, and living for them to that effect; As also of instituting prelates, archbishops, bishops, rectors and vicars of parishes, and parish churches, and of distributing and dividing all the foresaid bounds of the said country into divers and distinct shires, provinces and parishes, for the better provision of the churches and ministry, division of the shires, and all other civil police; And likewise of founding, erecting and instituting a senate of justice, places and colleges of justice, council and session, senators thereof, members for the administration of justice within the said country, and other places of justice and judicature: Further, of erecting and appointing also secret and privy councils and sessions for the public good and advantage of the said country, and giving and granting titles, honours and dignities to the members thereof, and creating their clerks and members; And appointing seals and registers with their keepers; and also of erecting and instituting officers of state, a chancellor, treasurer, comptroller, collector, secretary, advocate or attorney-general, a clerk or clerks of register, and keepers of rolls, justice clerk, director or directors of chancery, conservator or conservators of the privileges of the said country, advocates, procurators and solicitors thereof, and other members necessary: And further, of giving, granting and disponing any parts or portions of the said lands and lordship of Nova Scotia,

' heritably belonging to them, to and in favour of whatsoever persons, their ' heirs and assigns, heritably, with the teinds and teind-sheaves thereof included, ' (provided they are his Majesty's subjects,) to be holden of the said William ' Earl of Stirling, or of his said Majesty and his successors, either in blench-farm, ' feu-farm, or in ward and relief, at their pleasure, and to intitle and denomi- ' nate the said parts and portions by whatsoever styles, titles and designations ' should seem to them fit, or be in the will and option of the said William Earl ' of Stirling and his foresaids; which infeftments and dispositions shall beap- ' proved and confirmed by his said Majesty and his successors, freely, without ' any composition to be paid therefor: Moreover, his said Majesty and his ' successors shall receive whatsoever resignations shall have been made by the ' said William Earl of Sterling, and his heirs and assigns, of all and whole the ' foresaid lands and lordship of Nova Scotia, or of any part thereof, in the hands ' of his said Majesty, and of his successors and commissioners, with the teinds ' and teind-sheaves thereof included, and others generally and particularly above * mentioned, to and in favour of whatsoever person or persons, (provided ' they are his Majesty's subjects, and live under his obedience,) and they ' shall pass infeftments thereon, to be holden in free blench-farm of his said ' Majesty, his heirs and successors, in manner above mentioned, freely, with- ' out any composition: Moreover, giving, granting and committing power ' to the said William Earl of Stirling, and his heirs and assigns, of having and ' lawfully establishing and causing coin money in the said country and ' lordship of Nova Scotia, and for the readier convenience of commerce and 'agreements amongst the inhabitants thereof, of such metal, form and fashion ' as they shall appoint or fix : Further, giving, granting, ratifying and con- ' firming to the said William Earl of Stirling, and his heirs and assigns, all places, ' privileges, prerogatives and precedencies whatsoever, given, granted and re- ' served, or to be given, granted and reserved to the said William Earl of Stir- Ming, and his heirs and assigns, and his successors.

Lieutenants of the said ' country and lordship of Nova Scotia, over the knights-baronets and remanent ' portioners and associates of the said plantation, so as the said William Earl of 'Stirling, and his heirs-male descending of his body, as Lieutenants foresaid, ' might and could take place, prerogative, pre-eminence aud precedency, as well ' before all squires, lairds and gentlemen of the said kingdom of Scotland, as ' before all the foresaid knights-baronets of the said kingdom, and all others ' before whom the said knights-baronets, by privilege of the drgnity gaanted to ' them, can have place and precedency : All and whole which province and ' lands of Nova Scotia, with all the boundaries and seas of the same, were ' united, annexed and incorporated into one entire and free lordship and barony, ' to be called by the foresaid name of Nova Scotia in all time to come ; and by ' which charter it is ordained, that one seisin, to be taken by the said William 'Earl of Stirling, and his foresaids, at the Castle of Edinburgh, without any 'other special or particular seisin by himself and his foresaids, at any other ' part, shall stand and be sufficient, in all time coming, for all and whole the 'country above mentioned, with all the parts, pendicles, privileges, casualties, ' liberties, and immunities thereof; as in the said charter, comprehending divers ' other conditions, provisions, limitations and restrictions, with many and great '.privileges, immunities, dignities and honours, is more fully contained; And 'in which lands aforesaid, the foresaid William Eail of Stirling was duly infeft, ' in virtue of the precept of seisin inserted in the end of the said charter, accor- ' ding to instrument of seisin following thereon, dated the 29th day of September, ' and recorded in the General Register of Seisins, &c. kept at Edinburgh, the ' 1st day of October anno Domini 1625 : And THiT the said Alexander Earl of ' Stirling and Dovan is nearest and lawful heir of the said deceased William ' Earl of Stirling, his great-great-great grandfather, in all and sundry the lands ' and others foresaid ; Anq that he is of lawful age ; And that the said lands ' and others, with the pertinents, are holden immediately ofws in chief. Where- ' fore we require and command you, that ye give seisin thereof to the foresaid ' Alexander Earl of Stirling and Dovan, or his certain attorney, bearer hereof, ' without delay, saving the right of every person whatsoever, and taking se- ' curity of two pennies Scots money, by duplication of the blench farm-duty of ' the foresaid lands and others as above mentioned, lying as above, due to us j

' and this no wise ye leave undone, these presents after the next term being to ' no purpose. Witness myself at Edinburgh, the 7th day of July, and in the ' second year of our reign, 1831.

' To the Sheriff of Edinburgh and his Bailies, for Alexander Earl of Stirling 'and Dovan, to his great-great-great grandfather.

(Signed) ' William Campbell Jr. Sub.'

AFTER READING and interpreting which precept of seisin, in the common speech, to the witnesses present, the foresaid Sheriff, in virtue of the said precept of seisin, and of the dispensation therein contained, and the office of bailiary therein committed to him, gave and delivered heritable state and seisin, actual, real and corporal possession of the said lands and others above specified, with the pertinents, to the before-named Alexander Earl of Stirling and Dovan, heir aforesaid, and that by delivery of earth and stone of the ground of the said Castel into the hands of the said attorney, for and in name of the said Alexander Earl of Stirling and Dovan, after the tenor of the said precept of seisin above inserted, and dispensation contained in the same, in all points. Whereupon, and upon all and sundry the premises, the foresaid attorney asked instruments from me, the undersigned notary-public. These things were so done at the said Castle of Edinburgh, within the outer gate there, in virtue of the dispensation foresaid, between the hours of eleven forenoon and twelve noon, on the day of the month, in the year of our Lord, and of the reign of our sovereign lord the King, above written, in presence of David Byars, clerk in the office of the clerk of the sheriffdom of Edinburgh, and William Wilson, second son of me, notary-public, residing in Lyndoch Place, at Edinburgh, witnesses to the premises specially callfed and required, and this public instrument with me subscribing.

And I truly, James Wilson, clerk of the diocese of Edinburgh, and clerk of the sheriffdom of Edinburgh, and notary public, by royal authority, and by the Lords of Council and Session, according to the tenor of the act of Parliament admitted, because at all and sundry the premises, whilst they were, as is before stated, so said, done and performed, I was, together with the before-named witnesses, personally present, and all and sundry these premises 1 saw, knew, and heard so performed and said, and took a note of them ; therefore I, being called and required, prepared therefrom this present public instrument, by another hand, upon this and the six foregoing pages of parchment, duly stamped, with the marginal addition on page third, faithfully written, and have rendered it in this form of a public instrument ; and in faith, corroboration and testimony of the truth of all and sundry the premises, have signed and subscribed the same with my sign, name and surname, used and wont.

Veritas.

Ja. Wilson, N. P.

Dav. Byars, witness.

Wm. Wilson, witness.

At Edinburgh, the twelfth day of August one thousand eight hundred and thirty-one years, this sasine was presented by Ephraim Lockhart, writer to the signet, and is recorded in the one thousand six hundred and forty-sixth book of the new General Register of Sasines, Reversions, &c. and on the 102, 103, 104, 105, 106, 107, 108, 109, 110, and lllth leaves thereof, conform to the act of Parliament made there anent in June 1617, by me, depute-keeper of said Register. Ar. Wishart.

[translation. ] INSTRUMENT OF SEISIN

IN FAVOUR OF

ALEXANDER, EARL OF STIRLING AND DOVAN, OF THE LA^'DS, COUNTRY AND LORDSHIP OF CANADA AND OTHERS.

IN THE NAME OF GOD, Amen. Be it known to all men by this present public instrnment, That on the 8th day of July, in the year of our Lord 1831, and of the reign of our sovereign lord, William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, the second year, In presence of me, notary-public, and the witnesses subscribing, appeared personally Ephraim Lockhart, writer to his Majesty's signet, as procurator and attorney, specially constituted, for and in the name of the Right Honourable Alexander Earl of Stirling and Dovan, Viscount of Stirhngand Canada, Lord Alexander of TuUibodie, &c. great-great-grea'.-grandson and heir of the deceased Sir V/iiliam Alexander, Knight, the first Earl of Stirling, whose power of piocuratory was sufficiently known to me, the undersigned notary-public; and there also appeared Thomas Christopher Banks, Esquire, residing in No, 19. Duke Street, Edinburgh, bailie in that part specially constituted, in virtue of the charter under mentioned, and precept of sei.sin therein contained, to the Castie of Edinburgh, the place for giving seisin of the lands and others under written, in virtue of the union and dispensation contained in the said charter and precept of seisin under written ; the said attorney HAYiKG and HOLDING in his hands a certain extract registrate charter, made, given and granted by Charles. King of Great Britain, France and Ireland, under his Great Seal, containing therein the precept of seisin for giving to the foresaid Sir William Alexander, his Majesty's Hereditary Lieutenant of the country and lordship of Nova Scotia in America, and his heirs and assigns, heritably for ever, seisin of all and sundry islands lying within thegulf of Canada, between Nova Scotia and Newfoundland, at the mouth and entrance of the great river Canada, where it falls and enters into the said guif, (including therein the great island Anticosti): Also of all and sundry islands lyicg within the said river Canada, from the said mouth and entrance up to the head, first rise and source thereof, wheresoever it is, or the lake whence it flows, (which was thought to be towards the great bay of California, called by some the Vermillion Sea,) or within any other rivers falling into the said river Canada, or in whatsoever lakes, waters or straits, by which either the said great river Canada or any of the said other rivers pass, or in v/hich they run out : And further, of fifty leagues of bounds on both sides of the aforesaid river Canada, from the said mouth and entrance to the said head, spring and source thereof: also on both sides of the said other rivers falling thereinto : as also on both sides of the said lakes, straits or waters by which any of the said rivers pass, or in which they terminate : And likewise, of all and whole the bounds and passages, as well on the waters as on the land, from the foresaid head, spring p.nd source of the river Canada, wheresoever it is, or