Martin v. Lessee of Waddell, 41 U.S. 367, 16 Pet. 367, 10 L.Ed. 997 (1842)

MERRIT MARTIN and others, Plaintiffs in error,

v.

The Lessee of WILLIAM C. WADDELL, Defendant in error.

January Term, 1842

            ERROR to the Circuit Court of New Jersey. The defendant in error, the lessee of William C. H. Waddell, instituted, to April term 1835, in the circuit court of the United States for the district of New Jersey, an action of ejectment, against Merrit Martin and others, for the recovery of certain land covered with water, situated in the Raritan bay, below high-water mark, in the state of New Jersey. The defendants appeared to the suit; and at April term 1837, the cause was tried by a jury, who found a special verdict, on which judgment was afterwards entered for the plaintiff; from which judgment, the defendants prosecuted this writ of error.

            The case was argued by Wall and Wood, for the plaintiffs in error; and by Ogden and Wright, for the defendant.

            The special verdict found, that on the 12th day of March 1664, certain letters-patent, duly executed, were granted by Charles II., then King of England, to James, Duke of York; and set forth the letters-patent at large. The letters-patent stated, that the king----

            'For divers good causes and considerations us thereunto moving, having, of our special grace, certain knowledge, and mere motion, given and granted, and by these presents, for us, our heirs and successors, do give and grant unto our dearest brother, *370 James, 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 thence extending along the sea-coast, unto a certain place called Petuaquine, or Pemaquid, and so up the river thereof, to the farthest head of the same, as it tendeth northward; and extending from thence to the river of Kennebeque, and so upwards, by the shortest course, to the river of Canada northward; and also, all that island or islands, commonly called by the several name or names of Matowacks or Long Island, situate, lying and being towards the west of Cape Cod, and the Narrow Higansetts, abutting upon the main land, between the two rivers there, called or known by the several names of Connecticut or Hudson rivers; together also with the said river called Hudson river, and the lands from the west side of Connecticut to the east side of Delaware day. And also, all those several islands called or known by the names of Martin's Vineyard and Nantucks, or otherwise Nantuckett (whereof the tenements aforesaid, with the appurtenances in the declaration aforesaid mentioned are parcel); together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowlings, and all other royalties, profits, commodities and hereditaments to said several islands, lands and premises belonging and appertaining, with their and every of their appurtenances, and all our estate, right, title, 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 the rents, revenues and profits, of all and singular the said premises, and of every part and parcel thereof: to have and to hold, all and singular the said lands, islands, hereditaments and premises, with their, and every of their, appurtenances, hereby given and granted, or herein before mentioned, to be given and granted, unto our dearest brother, James, Duke of York, his heirs and assigns for ever; to be holden of us, our heirs and successors, as of our manor of East Greenwich, in our county of Kent, in free and common socage, and not in capite, nor by knight-service, yielding and rendering. And the same James, Duke of York, doth, for himself, his heirs and assigns, covenant and promise *371 to yield and render unto our heirs and successors, of and for the same, yearly and every year, forty beaver-skins, when they shall be demanded, or within ninety days after. And we do further, of our special grace, certain knowledge, and mere motion, for us, our heirs and successors, give and grant unto our said dearest brother, James, Duke of York, his heirs, deputies, agents, commissioners and assigns, by these presents, full and absolute power and authority to correct, punish, pardon, govern and rule all such the subjects of us, our heirs and successors, as shall, from time to time, adventure themselves into any the parts or places aforesaid, or that shall or do, at any time hereafter, inhabit within the same, according to such laws, orders, ordinances, directions and instruments, as by our said dearest brother, or his assigns, shall be established, and in defect thereof, in case of necessity, according to the good discretion of his deputies, commissioners, officers or assigns, respectively; as well in all causes and matters, capital and criminal, as civil, both marine and others, so always as the said statutes, ordinances and proceedings be not contrary to, but as near as conveniently may be, agreeable to the laws, statutes and government of this realm of England; and saving and reserving to us our heirs and successors, the receiving, hearing and determining of the appeal and appeals of all or any person or persons of, in or belonging to the territories or islands aforesaid, in or touching any judgment or sentence to be there made or given. And further, that it shall and may be lawful, to and for our said dearest brother, his heirs and assigns, by these presents, from time to time, to nominate, make, constitute, ordain and confirm, by such name or names, style or styles, as to him or them shall seem good, and likewise to revoke, discharge, change and alter, as well all and singular, the governors, officers and ministers, which hereafter shall be by him or them thought fit and needful to be made or used, within the aforesaid parts and islands; and also to make, ordain and establish all manner of orders, laws, directions, instructions, forms and ceremonies of government and magistracy, fit and necessary for and concerning the government of the territories and islands aforesaid, so always that the same be not contrary to the laws and statutes of this our realm of England, but as near as may be agreeable thereunto, and the same, at all times hereafter, to put in execution, or abrogate, *372 revoke or change, nor only within the precincts of the said territories or islands, but also upon the seas, in going and coming to and from the same, as he or they, in their good discretion, shall think to be fittest for the good of the adventurers and inhabitants there; and we do further, of our own special grace, certain knowledge, and mere motion, grant, ordain and declare, that such governors, officers and ministers as, from time to time, shall be authorized and appointed, in manner and form aforesaid, shall and may have full power and authority to use and exercise martial law, in cases of rebellion, insurrection and mutiny, in as large and ample a manner as our lieutenants in our counties within our realm of England have or ought to have, by force of their commission of lieutenancy, or any law or statute of this our realm; and we do further, by these presents, for us, our heirs and successors, grant unto our said dearest brother, James, Duke of York, his heirs and assigns, that it shall and may be lawful to and for the said James, Duke of New York, his heirs and assigns, in his or their discretion, from time to time, to admit such and so many person or persons to trade and traffic unto and within the said territories and islands aforesaid, and into every or any part or parcel thereof, and to have, possess and enjoy any lands or hereditaments in the parts and places aforesaid, as they shall think fit, according to the laws, orders, constitutions and ordinances by our said brother, his heirs, deputies, commissioners and assigns, from time to time, to be made and established, by virtue of, and according to the true intent and meaning of, these presents; and under such conditions, reservations and agreements as our said brother, his heirs or assigns, shall set down, order, direct and appoint, and not otherwise, as aforesaid; and we do further, of our special grace, certain knowledge, and mere motion, for us, our heirs and successors, give and grant unto our said dearest brother, his heirs and assigns, by these presents, that it shall and may be lawful to and for him, them or any of them, at all and every time and times hereafter, out of any of our realms or dominions whatsoever, to take, lead, carry and transport in and into their voyages, and for and towards the plantations of our said territories and islands, all such and so many of our loving subjects, or any other strangers, being not prohibited or under restraint, that will become our loving subjects, and live under our allegiance, as shall willingly *373 accompany them in the said voyages; together with all such clothing, implements, furniture and other things usually transported, and not prohibited, as shall be necessary for the inhabitants of the said islands and territories, and for their use and defence thereof, and managing and carrying on the trade with the people there, and in passing and returning to and fro; yielding and paying to us, our heirs and successors, the customs and duties, due and payable, according to the laws and customs of this realm. And we also, for us, our heirs and successors, grant to our said dearest brother James, Duke of York, his heirs and assigns, and to all and every such governor or governors, or other officers or ministers as, by our said dear brother, his heirs or assigns, shall be appointed, to have power and authority of government and command in or over the inhabitants of the said territories or islands, that they, and every of them, shall and lawfully may, from time to time, and all times hereafter, for ever, for their several defence and safety, encounter, expulse, repel and resist, by force of arms, as well by sea as by land, and all ways and means whatsoever, all such person and persons, as without the special license of our said dearest brother, his heirs or assigns, shall attempt to inhabit within the several precincts and limits of our said territories and islands, and also all and every such person and persons whatsoever, as shall enterprise or attempt, at any time hereafter, the destruction, invasion, detriment or annoyance to the parts, places or islands aforesaid, or any part thereof. And lastly, our will and pleasure is, and we do hereby declare and grant, that these our letters- patent, or the enrolment thereof, shall be good and effectual in the law, to all intents and purposes whatsoever, notwithstanding the not reciting or mentioning of the premises, or any part thereof, or the metes or bounds thereof, or of any former or other letters-patent or grants heretofore made or granted of the premises, or of any part thereof, by us, or of any of our progenitors, unto any other person or persons whatsoever, bodies politic or corporate, or any act, law or other restraint, uncertainty or imperfection whatsoever, to the contrary in anywise notwithstanding; although express mention of the true yearly value or certainty of the premises, or any of them, or of any other gifts or grants by us, or by any of our progenitors or *374 predecessors, heretofore made, to the said James, Duke of York, in these presents, is not made, or any statute, act, ordinance, provision, proclamation or restriction heretofore had, made, enacted, ordained or provided, or any other matter, cause or thing whatsoever, to the contrary thereof in anywise notwithstanding.'

            The special verdict further found, that on the 23d day of June 1664, James, Duke of York, by indenture conveyed to Lord Berkley and Sir George Carteret, for a competent sum of money, all that tract of land adjacent to New England, lying and being to the westward of Long Island, and Manhitas Island, and bounded on the east, part by the main sea and part by Hudson's river, having upon the west, Delaware bay or river, and extending southward to the main ocean as far as Cape May, at the mouth of Delaware bay, and to the northward as far as the northernmost branch of the said bay or river of Delaware, which is in forty-one degrees and forty minutes of latitude, and crossing over thence in a straight line to Hudson's river, in forty-one degrees of latitude; which said tract of land so as aforesaid demised, was, by the terms of the said indenture, thereafter to be called New Caesaraea or New Jersey, and was a portion and part of the said tract of land, so as aforesaid granted by the said Charles II. to the said James, Duke of York and of which said tract, so as aforesaid demised, the tenements aforesaid, with the appurtenances, in the declaration aforesaid mentioned, are parcel. To have and to hold, to the said John, Lord Berkley, and Sir George Carteret, from the day next before the day of the date of the said indenture, for one whole year thence next ensuing. By virtue whereof, the said John, Lord Berkley, and Sir George Carteret, into the tenements so as aforesaid demised, with the appurtenances, entered, and were possessed thereof, for the term aforesaid, and being so thereof possessed, afterwards, to wit, on the 24th day of the same month of June, in the year last aforesaid, by a certain indenture made between the said James, Duke of York, of the one part, and the said John, Lord Berkley, and Sir George Carteret of the other part, bearing date the same day and year last aforesaid, for and in consideration of a competent sum of good and lawful money of England, to the said James, Duke of York, paid, by the said John, Lord Berkley, and the said Sir George Carteret, he, the said James, Duke of *375 York, granted, bargained, sold, leased and confirmed to the said John, Lord Berkley, and Sir George Carteret, and to their heirs and assigns for ever, they then being in their actual possession, the tenements last aforesaid, with the appurtenance, so as aforesaid, to be called New Caesaraea or New Jersey; and also, all rivers, mines, minerals, woods, fishings, hawkings, huntings and fowlings, and all other royalties, profits, commodities and hereditaments whatsoever, to the said land and premises belonging, or in any wise appertaining, with their and every of their appurtenances, in as full and ample a manner as the same were granted to the said James, Duke of York, by the before-recited letters-patent: to have and to hold the tenements last aforesaid, with the appurtenances and every of them, unto the said John, Lord Berkley, and Sir George Carteret, their heirs and assigns for ever.

            The special verdict further found, that afterwards, on the 29th day of June 1674, King Charles II. granted to James, Duke of York, and on the 28th and 29th days of July 1674, James, Duke of York, for a competent sum of money, granted and conveyed to Sir George Carteret, all that tract of land, adjacent to New England, lying and being to the westward of Long Island and Manhitas Island, and bounded on the east, part by the main sea, and part by Hudson's river, extending southward as far as a certain creek, called Barnagat, being about the middle between Sandy Point and Cape May, and bounded on the west, in a straight line from said creek, called Barnagat, to a certain creek in Delaware river, called Renkokus Kill, and thence up the said Delaware river, to the northernmost branch thereof, in latitude forty-one degrees and forty minutes, and on the north, crossing over in a straight line to Hudson's river, in forty- one degrees of latitude (of which said tract of land and premises last mentioned and demised, the tenements aforesaid, with the appurtenances in the declaration aforesaid mentioned, are parcel); together with all mines, minerals, woods, rivers, fishings, hawkings, huntings and fowlings, and all the royalties, profits, commodities and hereditaments whatsoever, to the said last- mentioned tenements belonging, or in any wise appertaining, with their and every of their appurtenances, in as full and ample a manner as the same were granted to the said James, Duke of York, by the before-recited letters-patent: to have and to hold the tenements last aforesaid, *376 with the appurtenances and every of them, unto the said Sir George Carteret, his heirs and assigns for ever. And further, that previous to the execution of the said last-mentioned letters-patent, and of the several hereinbefore-mentioned indentures following the same, to wit, on the 13th day of June, in the year of our Lord 1674, by a certain proclamation, published and promulgated on the same day and year last aforesaid, by the said Charles II., he, the said Charles II., did command and charge all persons whatsoever, inhabiting the said province of New Caesaraea or New Jersey, whereof the tenements aforesaid, with the appurtenances, in the declaration aforesaid mentioned, are parcel, to yield obedience to the laws and government which were or should be thereafter established in the said province, by the said Sir George Carteret (who, in the words of the said proclamation, had the sole power under him, the said Charles II., to settle and dispose of the said province, upon such terms and conditions as to him, the said Sir George Carteret, should appear fit), upon pain of incurring the high displeasure of the said Charles II., and of being proceeded against according to law.

            The jury further found, that afterwards, by conveyances from Sir George Carteret to divers persons, and by conveyances from Lord Berkley, and the will of Sir George Carteret, and sundry mesne conveyances and deeds of partition, set forth in the special verdict, and by a deed of confirmation from the Duke of York, the part of the province of New Jersey, called East New Jersey, or which the premises in this ejectment are part, became vested in twenty-four proprietors, and all rights, benefits and advantages, and all and every the isles, islands, rivers, mines, minerals, woods, fishings, hawkings, huntings, fowlings, and all other royalties, governments, powers, forts, franchises, harbors, profits, commodities and hereditaments whatsoever, unto the said easterly part of the said province of New Jersey belonging, or in anywise appertaining, with their, and every of their, appurtenances; and all the estate, right, title, and interest, claim and advantage whatsoever, as well in law as in equity of the said grantors, and each and every of them, of, in, unto and out of said easterly part of the said province of New Jersey, and of every part and parcel thereof, and the reversion and reversions, *377 remainder and remainders of the same, and of every part and parcel thereof, and all the rents, duties, services reserved upon any estates or grants theretofore made by the said Lord Berkley and Sir George Carteret, or by any persons claiming any estate, interest or authority, from, by or under either of them, of any part of the said premises thereby conveyed unto the said Sir George Carteret; to have and to hold to the said Sir George Carteret, and to his heirs and assigns in severalty, to the sole and only use of the said Sir George Carteret, his heirs and assigns for ever; and that it was further agreed and covenanted in the said indenture, quintipartite, that the part of the said province of New Jersey, therein conveyed to the said Sir George Carteret should thereafter be known and distinguished by the name of East New Jersey.

            The jurors further found, that on the 14th day of March 1682, the Duke of York, in consideration of a competent sum of money, for the better extinguishing of all such claims and demands as the said Duke of York, and his heirs, might in anywise have, of or in the premises, with the appurtenances, called East New Jersey, as aforesaid, did grant, bargain, sell, release, convey and confirm unto the said twenty-four proprietors, their heirs and assigns, all the premises, with the appurtenances, so as aforesaid called East New Jersey, and every part and parcel thereof, together with all islands, bays, rivers, waters, forts, mines, minerals, quarries, royalties, franchises whatsoever, to the same belonging, or in anywise appertaining, and also the free use of all bays, rivers and waters leading unto, or lying between the last-mentioned premises or any of them, for free trade, navigation, fishery or otherwise, to have and to hold to the said twenty-four proprietors, their heirs and assigns for ever, to the only proper use and behoof of the said twenty-four proprietors, their heirs and assigns for ever. And that the said Duke of York, by the said last-mentioned indenture, did also grant, transfer and assign to the said twenty-four proprietors, and to their heirs and assigns, proprietors of the said province of East New Jersey for the time being, all and every such, and the same powers, authorized jurisdictions, governments, and other matters and things whatsoever, which by the said several above-recited letters-patent, from the said Charles II., to the said Duke of York, or either of them, were granted or intended to be granted, to be exercised by the said Duke of York, *378 his heirs or assigns, his or their agents or officers, in or upon the said premises, by the said last-mentioned indenture, confirmed or intended to be thereby confirmed, and every of them, to be held, enjoyed, exercised and executed by the said twenty-four proprietors, their heirs and assigns, proprietors of the said last-mentioned premises, for the time being, as fully, amply, to all intents, constructions and purposes, as the said Duke of York, or his heirs, could or ought to hold, enjoy, use, exercise or execute the same, by force and virtue of the said several above-recited letters-patent, or otherwise howsoever.

            The jurors further found, that King Charles II., on the 23d day of November 1683, by an instrument in writing, duly executed, and reciting the said last- mentioned indenture, from the said Duke of York to the said twenty-four proprietors, did recognise their right to the soil and government of the said province of east New Jersey, and did strictly charge and command the planters and inhabitants, and all other persons concerned in the same, to submit and yield all due obedience to the laws and government of the said twenty-four proprietors, their heirs and assigns, as absolute proprietors and governors thereof, who, in the words of the said instrument in writing, had the sole power and right, derived under the said Duke of York, from him the said Charles II., to settle and dispose of the said province of East New Jersey, upon such terms and conditions as to the twenty-four proprietors, their heirs and assigns, should seem meet, as also, to their deputy or deputies, agents, lieutenants and officers lawfully commissioned by them, according to the powers and conditions granted to them.

            The jurors further found, that afterwards, on the 15th day of April 1702, the said twenty-four proprietors, and the other persons, in whom the whole estate, right, title and interest in the said province of East New Jersey, were vested at the said last-mentioned date, as proprietors thereof, by an instrument in writing, under their hands and seals, bearing date the same day and year last aforesaid, did, for themselves and their heirs, surrender and yield up unto Anne, Queen of England, &c., and to her heirs and successors, all the powers and authorities in the said letters-patent granted, to correct, punish, pardon, govern and rule *379 all or any of her said majesty's subjects or others, who then were as inhabited, or thereafter might adventure into or inhabit, within the said provision of East New Jersey; and also to nominate, make, constitute, ordain and confirm any laws, orders, ordinances, directions and instruments for those purposes, or any of them, and to nominate, constitute or appoint, revoke, discharge, change or alter any governor or governors, officers or ministers, which were or should be appointed within the said province, and to make, ordain and establish any orders, laws, directions, instruments, forms or ceremonies of government and magistracy, for or concerning the same, or on the sea, in going to or coming from the same, or to put in execution or abrogate, revoke or change such as were already made, for or concerning such government, or any of them; and also all the powers and authority by the said letters-patent granted, to use and exercise martial law in the said province of East New Jersey, and to admit any person or persons to trade or traffic there; and of encountering, repelling and resisting by force of arms, any person or persons attempting to inhabit there, without the license of them, the said proprietors, their heirs and assigns, and all other the powers, authorities and privileges of and concerning the government of the province last aforesaid, or the inhabitants thereof, which were granted or mentioned to be granted by the said several above-recited letters-patent, or either of them. And that the same Queen Anne, afterwards, to wit, on the 17th day of the same month of April, in the year last aforesaid, did accept of the said surrender of the said powers of government, so made by the said proprietors in and over the premises last aforesaid.

            And the jurors further found, that afterwards, on the 25th of November 1824, the legislature of the state of New Jersey passed an act which declared that the shore and land covered by the waters of the Sound and Raritan river, in the township of Perth Amboy, should be set apart for the purpose of planting and growing oysters, subject to a rent to be paid to the state of New Jersey, and authorized the commissioners, acting under the law, to permit the owners of the adjacent land to stake off lots within the surveys of the commissioners; which surveys of the land covered with water, the commissioners were directed to make. The jury found, that the defendants in the ejectment, having complied *380 with the regulations of the act of assembly, were in possession of the lands covered with water, for the recovery of which the ejectment was brought. The jury found, the premises in dispute are situated beneath the waters of the Raritan river and bay, where the tide ebbs and flows. That the plaintiffs in the ejectment claimed title under regular conveyances from those to whom the proprietors of East Jersey had given deeds in fee-simple for the premises claimed by them.

            The cause was argued at large, by the counsel for the plaintiffs, and the defendants, on many points; but the decision of the supreme court having been given exclusively on the questions presented on the construction and effect of the letters-patent, and the effect of the surrender by the proprietors of East New Jersey to Queen Anne, in 1702, the arguments of counsel on these questions only are given.

            Wood, with whom was Wall, for the plaintiffs in error.--It is admitted, that the King of Great Britain, Charles II., had the power to grant the territory of New Jersey, as private property, and that he did so grant it, including private rivers, ordinary mines, &c. This territory was discovered and held, not for revenue, but for colonization and settlement. After the grant, it was held by the proprietors, as private property, detached from government, and not as demesne lands of the government. This is conformable to usage. The proceeds of sales of the territory went into the private purse of the proprietors, snd was not applied to, the fiscal purposes of the government. Taxes were resorted to, under the proprietary government, to raise revenue. It is also admitted, that the king had power to create colonial and palatine governments and jurisdictions. This power was disputed and denied, after the revolution of 1688; but this did not operate retrospectively, and destroy such patents as were already granted. It is also admitted, that the surrender to Queen Anne embraced no private property; but that the same was all reserved to the proprietors.

            To enable the plaintiff below to recover, he must be able to maintain two positions: 1st, That he has a possessory title to the *381 premises in question, the soil of this navigable water: and 2d, That there was not a common right of fishery in the people at large, in the premises in question. In ejectment, the party must recover possession of the soil, and therefore, he must show a possessory title. If there was in the people of New Jersey a common right of fishery, the legislature, exercising plenary sovereignty, could, unquestionably, dispose of it, modify it, lease it, and exercise every act of ownership and control over it. Of course, the lease of it, under the statute, to the defendant, would be good. The use and occupancy of the premises by the defendant, is only commensurate with that right; he does not pretend to take absolute possession of the soil; he cannot be ejected from a possession commensurate with his right.

            Has the plaintiff shown a possessory title to the soil? All titles, in New Jersey, go back to the grant of Charles II. to the Duke of York; and much depends upon the sound construction of this grant, in reference to the premises in question. There are, according to our view, two prominent errors in that opinion, of which we complain; and it may contribute to a right understanding of the argument, to point them out at the threshold. 1st. In a grant by the king, of prerogative rights to a subordinate governor, the regalia thus granted continue attached to the government, in the same way as when they were in the hands of the crown. In the grant of the right to an individual, they become mere private property--private franchises. The distinction, as will be shown, was in the mind of the circuit court; but it did not make such a vivid impression as to induce the court to carry it out to its legitimate results.

            2d. It is thought the court erred, in clothing the king with too despotic a power over the territory in question--treating him as an absolute despot, independent of parliament, and in considering the grant as transferring to the duke such absolute powers.

            It is admitted, this royal grant has a double aspect--a public and a private aspect. The plaintiff below must succeed in bringing his claim under the second point, if he succeed at all. This country was held by right of discovery, and not conquest. It was only retaken from the Dutch, and claimed, on the ground *382 of this prior right of discovery. Smith's New Jersey Laws, 36-7; 1 Story Const. 136; Chitty's Prerog. 29-30; Canal Commissioners v. People, 5 Wend. 445; Bogardus v. Trinity Church, 4 Paige 178. The inhabitants emigrating to this country carried with them the laws of England, so far as they were applicable to their situation. 4 Paige 178; 2 P. Wms. 75; 2 Salk. 411; Clark's Colonial Law 7; 1 Chalmers's Opinions 198; 2 Ibid. 202. The use of fisheries and rivers, as common property, was peculiarly applicable to their situation. If claimed by conquest, the English when invited to settle there, would carry with them their own laws and constitutional rights. 1 Story Const. 111, and cases cited.

            Again, if claimed by conquest, even as to the conquered, the moment English law is introduced, by proclamation or otherwise, it is irrevocable by the king. Cowp. 213. Here, it was introduced in the royal grant itself. The great principles of British liberty must be considered as accompanying this royal charter, and it must be construed accordingly. It is matter of history, that the Stuarts, to encourage emigration, introduced into these colonies the broadest principles of British liberty. The fundamental constitutions of New York show this. The people have always appealed to Magna Charta as the foundation of American as well as British liberty.

            There is no language in this royal grant that will pass the sea and its arms, as private property. We must here treat it in the same way as if the king had granted a tract of land to a private individual. The plaintiff below can derive no aid from its being a public grant of territory and government. In that sense, we admit, the rivers passed; and will presently show how they passed. We contend, first, that the sea and its arms were part of the regalia or prerogative rights of the crown. And secondly, that they could not, upon a sound construction of this charter, pass as private property, to the Duke, in his private capacity.

            I. They are always called royal rivers. Banne Case, Davies 155; Shultze on Aquatic Rights; 1 Bl. Com. 264. Prerogative *383 rights are such as are pre- eminently in the king, by way of preference over his subjects. Such as royal mines, wrecks, royal fish. Such rights as are held by the king on the same common ground as a subject holds, are not prerogative rights. Such, for instance, as private rivers and the ordinary demesne lands of the crown. Chitty's Prerog. 4. Royal rivers are preeminently in the king. Private rivers are presumed to be owned by the adjacent proprietors. Not so with public rivers; they are, at common law, in the king.

            Again, the sea and its arms are peculiarly and pre-eminently in the king in respect to their uses ; all of which, at common law, are public, and they are held by the king for the public benefit, viz., navigation, fishery, the mooring of vessels, which is subject to the jus preventionis. Angel on Tide-Waters 158. The private rights arise only after the character is changed, as in the case of alluvion, wharfing out, draining, &c. Such rights, until consummated, are mere possibilities. The right in the sea and its arms centres in the king for conservation of the public use; as a highway is called in the law, the king's highway. The counsel for the proprietors in Arnold v. Mundy contended, there was no distinction between the rights of the king, inasmuch as they were all held by the king, under his prerogative or political capacity. 1 Halst. 58. This argument confounded the distinction between the capacity in which the king holds, and the rights held by him. Though he holds all in his political capacity, he holds some preeminently, as regalia or royal rights. General words, 'rivers, mines,' &c., do not pass royal rivers, royal mines. Case of Mines, Plowd. 333-4, 336; Alton Wood's Case, 1 Co. 46 b; 16 Vin. Abr. 597, Prerog. K. a. § 27; Chitty's Prerog. 392; Canal Commissioners v. People, 5 Wend. 451.

            Nothing passes against the king by implication. Banne Case, Davies 157; Jure Coronae 117; 7 Conn. 200. The term 'rivers,' will not pass the soil. Davies 154. The terms 'ex certa scientia,' &c., never have the effect to enlarge the construction, so as to embrace prerogative rights, in such general terms. Alton Wood's Case, 1 Co. 46 b, and the above case in 16 Viner. Such general terms as 'all royalties,' will not have the effect. *384 7 Conn. 200. But in the grant in question, it is all royalties appertaining to the premises granted. 'Appurtenances' will pass nothing, except such things as are strictly appurtenant. Chitty's Prerog. 392. It will not be pretended, that royal rivers are appurtenant to the adjacent private land. These doctrines were fully maintained in this court, in the case of Charles River Bridge, in 11 Peters. It will also be borne in mind, that this ancient grant is to be construed in reference to the rights of the prerogative, as then understood.

            II. We shall now view this royal charter in its other aspects, as a great state paper, containing a transfer of territory, with the powers of government, according to the principles of the British constitution. In this respect it is to be construed upon liberal principles of public law. We admit, that under this aspect of the case, the regalia passed. And we contend, that if the grants did contain language sufficient to pass them on technical grounds, they will be construed to pass to the duke as the regalia of the government; he standing in the place of the crown, to hold them as the king held them. All the regalia, such as the sea and its arms, or the royal rivers, mines, wrecks, &c., were held by the duke and the proprietary government under him, as attached to the government. The duke being in the place of the king in respect to them. 1 Halst. 77-8. This construction is supported by considering,--1st. The character and purpose in and for which the territory was held by the king. 2d. The design of the royal grant.

            1. The territory was held and could only be held for settlement by colonization or otherwise. If held to lie idle, there would be the same objection to it as to the Indian title.

            2. The design of the grant was to colonize and settle with British subjects, in order to consummate the title and extend the British dominions. The purpose was, as the grant purports on its face, to introduce British law, and the British constitution. To effect these great objects, it was indispensable that all the regalia or royal rights should be held here as they were in England, attached to the government, and for the benefit of the people.

            *385 Prerogative rights are held for the benefit of the community; more especially those charged with the common use, as royal rivers. Chitty's Prerog. 4; 4 T. R. 410; The Elsebe, 5 Rob. 159. According to this view of the grant, the sea and its arms may correctly be said to be appurtenant to the government and territory as a colonial domain. This construction is illustrated by the cases of counties palatine. The count palatine derives his name, a pelatio, from his standing in the place of the king, and indictments are charged against his peace. 4 Inst. 204. Hence, lands in a county palatine, when granted by the court, pass without livery. 4 Inst. 206. Lands may be holden of him in capite, though they cannot be of a private subject. Davies 181. The regalia, in a county palatine, are incident to the government. Boss v. Bishop of Durham, 2 Bulst. 226-7. It is sufficient to prescribe for franchises not granted--by showing a county palatine. 4 Com. Dig. tit. Franchise, D, 7. A county palatine is an inferior subordinate jurisdiction, in the heart of the kingdom, with mere judicial and administrative powers. A colonial government extends over a large territory, and is clothed with high legislative and executive power as well as judicial--with complete, though subordinate sovereignty. If the regalia pass in a county palatine, as incident to the subordinate jurisdiction, the reasons for passing them as incident to the colonial government, to be held and applied to the benefit of the colonists, applies with tenfold force.

            The surrender by the proprietors of the government to Queen Anne, included a surrender of all the regalia, such as wrecks, royal rivers, &c. 1st, Impliedly. 2d, In express terms.

            1. Impliedly. If the above view taken of the grant be correct, this follows of course: If these regalia were, by the royal grant, converted into mere private franchises in the hands of individuals, as private property, detached altogether from the government, as we have admitted *386 to be in the case with the soil and private rivers, then they were not surrendered. If they continued concomitants of the government, then clearly they were surrendered. What is a surrender but a re-transfer? If the regalia pass incidentally, by the creation or transfer of the sovereign power, they will, of course, pass by the surrender or re-transfer thereof. A king de facto takes the jure regalia. Chit. Prerog. 205.

            2. But there are in this surrender express terms, apt and sufficient to retransfer the regalia to the crown. They surrender all powers, authorities and privileges of and concerning the government, and the inhabitants thereof. Leaming & Spicer 615. 'Privileges' embraces the regalia in their hands. It was so understood by the proprietors. § 13. It is so used at common law. 7 Com. Dig. tit. Prerog. D, 32. If only the high political powers of government were designed to be surrendered, why was this language inserted in the surrender? The government itself embraces all these high political powers, and is senseless without them. All the minor jure regalia concerned the government and the inhabitants. The protocol is referred to, Leaming & Spicer 590, 596, wherein it is stated, that the rights in the seas cannot well be circumscribed. The rights of the seas, there referred to, were wrecks, royal fish, &c.

            Now, any one familiar with the jurisprudence of New Jersey knows that the proprietors never claimed or pretended, after the surrender, to claim these rights. The error here arises from attending to the protocol or negotiation, instead of the surrender itself. The proprietors negotiated for a reservation of those rights, like the Duke of Athol. But though the commissioners were at first disposed to concede some of them, yet finally none of them were reserved in the surrender. But this attempt, on the part of the proprietors, to procure such a reservation, shows they were satisfied that the surrender would pass them to the crown, unless an express reservation could be obtained. In the construction of all ancient instruments, but more especially of public grants, long-continued usage should have great influence.

            Next, as to the rights in the sea and its arms.

            *387 1. As to wrecks. This is one of the minor regalia respecting property, and is often vested in the subject as a franchise. Lords of manors bordering on the sea frequently claim it. Yet this was surrendered, and has been the subject of repeated regulation by statutes providing when and under what circumstances the proceeds shall be paid into the state exchequer. Patterson's Laws 385.

            2. Ferries, when established, wharves, ferry-stairs, piers, &c., stretch into the rivers and bays. If, over a private river, the owner of the ferry would have to purchase the land of the owner of the river; no such claim to the public rivers has been set up by the proprietors.

            3. Bridges, toll-bridges, and bridges connected with turnpikes, railroads, & c., when established over a public river, occupying the soil, would be an encroachment upon the rights of the proprietors, if they owned a bed of such river. Compensation in such cases is always made to the owners of private rivers and fast land; but none has been made to the proprietors as owners of the public rivers.

            4. The right of the riparian proprietor to wharf out into the public river, is a local custom in New Jersey. How can the growth of such a custom be reconciled with the idea that the soil and fisheries in those public waters were the private property of the lords proprietors.

            5. In all the public waters of the state, they have two kinds of fisheries-- common fisheries, and private or shore fisheries, belonging to the riparian owner. The latter is confined to fisheries for those kinds of fish which were usually taken by hauling the net upon the shore, and are called shore fisheries. By long usage, these kinds of fisheries have grown into private rights, belonging to the riparian owner, and have been recognised by repeated legislative acts. Bennett v. Boggs, 1 Bald. 70. Those common fisheries and riparian several fisheries are all incompatible with the claims of the proprietors, who, under such claims, would have had several fisheries in all the rivers, and disposed of them to their grantees. The Delaware was, by an early law, declared to be a common fishery. But this grew out of the controversy with Pennsylvania, and was the assertion of a right as against them. The *388 same common rights of fishery have existed in all the other waters of the state. Leaming & Spicer 480.

            The oyster fisheries are common in all the rivers and bays of the state, and have always been protected as such. The acts recite the rights of the poor to take oysters, and protect them from encroachment by citizens of other states; all founded on the idea of common right. 1 Halst. 90-1; 1 Allison's N. J. Laws 57, Preamble; 1 Pat. 203; 1 Nevile 87.

            It is not pretended, that the proprietors have ever possessed or enjoyed any of the regalia, since the surrender. They have occasionally made a few grants which have extended over these public waters, but they have been very few. Their grants have almost invariably been confined to the bank or margin of the public rivers. See 4 Griffith's Law Reg. 1292. But in the few grants they have made, it is not pretended, that the grantees have ever set up several fisheries for oysters, or floating fish; or claimed and exercised an exclusive right in any other way. One would suppose, if the proprietors had claimed the regalia after the surrender, they would at once have asserted and exercised the right of extinguishing the Indian title, a prerogative right appertaining to private property. But this has never been claimed or exercised, independently of license from the royal government. General usage, in New Jersey, then, is decidedly hostile to this extraordinary claim of the proprietors.

            A question has arisen, whether the King of England can grant the soil of the sea and its arms, so as to destroy or prejudice public rights. Not considering this question at all material to the main argument, I have purposely kept it out. If he had not such a power, however, it serves to strengthen the construction of the royal grant that he did not intend thus to convey the sea and its arms by this charter. It has been shown, that all the uses to which these public waters can be applied are public and common. It is only when the waters are excluded from the soil by alluvion, wharfing out, &c., that it becomes private; and then the whole character is changed. Udall v. Trustees of Brooklyn, 19 Johns. 175. To grant the soil, so as to give an individual the right to take it after such a change, has been made a nice question; and it has *389 been stated, that a grant, to have this effect, must be specially formed. Harg. 18; 2 Anst. 604, 609. But why need it be so specially formed; if the king can at once grant, so as to vest in an individual the soil, and divested of all common use before the change takes places?

            Common of fishery is a right which may be specially pleaded, and cannot be traversed. Richardson v. Mayor of Oxford, 2 H. Bl. 182; S. C. 4 T. R. 437; Ward v. Creswell, Willes 268. A grant of soil cannot destroy the common right of fishery. Chit. Prerog. 142; 2 Bl. Com. 39. The distinction drawn by Blackstone between free and several fisheries is not that the latter requires an ownership of the soil, but an exclusive fishery in a private river, granted by a private person. See Chitty on Fisheries 243-69. Harg., p. 11, admits a common right of fishery cannot be destroyed.

            The grants and pre-emptive rights spoken of in the books are claims by prescription, and grants of prescriptive rights, arising or presumed to have arisen prior to Magna Charta. See also 5 Mod. 73; Sid. 148-9; 16 Vin. Abr. Piscary, B, 1; Year Book, 8 Edw. IV. 18; 7 East 195; 1 Inst.; Magna Charta, ch. 16, 23. The grant of the river Thames opposite London, is founded on an ancient prescriptive grant. Shultze 56. No case can be shown of a grant, since Magna Charta and its confirmation, not founded on an ancient prescriptive right. The royal fisheries in the river Banne were special royalties, the ancient inheritance of the crown, resting upon old charters, collected from the Pipe Rolls; the evidence of which, as there adduced, would have been superfluous, if the king has the right and power over the navigable waters here contended for.

            The only remaining question to be considered is the effect of the decisions of Arnold v. Mundy, 1 Halst. 1; and 1 Penning. 391. The first of these cases occupied the whole ground. The suit was brought on a location made under the proprietors, with a view to try the right. In the other case, the question came up incidentally. The object of this suit unquestionably was, to review and overturn the decision of Arnold v. Mundy. There is no pretence for alleging that any question under the *390 constitution of the United States arose in Arnold v. Mundy. The question was of unwritten local laws, resting on the construction of an ancient charter, applicable to real property, and affected by the usages of the state. The jurisdiction of this court over cases where citizens of another state than the one in which the suit arises are concerned, rests upon the ground that the federal courts, in applying the law, will be more free from any undue influence. But it is state law they are to apply, not to review, alter or remodel state law. The jurisdiction of this court is not controlling or reviewing. It is not, so far as respects the settling of state law, equal; it is subordinate. The federal courts follow, and do not lead; their jurisdiction is occasional. Perhaps, not one part in ten thousand of the public waters in question, are under the jurisdiction of this court at all. The members of this court cannot be expected to be acquainted with all those local usages and opinions which enter into and modify the laws of a state, especially, its unwritten law. Hence, this court has decided, that the state judiciary is presumed best to know its own law, and is the appropriate organ to expound and settle it. Elmendorf v. Taylor, 10 Wheat. 152; Bell v. Morrison, 1 Pet. 359-60. Hence, this court follows, and changes with, the state law. Green v. Neal, 6 Ibid. 301.

            It is said, the decision in Arnold v. Mundy was not carried up and decided in the court of appeals. The true point to be ascertained is, whether that decision is state law; whether it has been so far adopted and acted upon, as to form a part of its unwritten law. There are two branches of unwritten law in relation to this subject. 1. Those old and well-established doctrines about which there can be no dispute, and which can never be modified or changed, without legislative interference, such as the law of descents. 2. Adjudications upon cases constantly arising, attended with new combinations of circumstances. It is in reference to this second branch, that the rule applies. Under the maxim stare decisis, these adjudications form part of the unwritten common law. But they may, occasionally, when found not to work well, be *391 modified. This flexibility is made to harmonize with the stability resulting from the application of the above maxim. The power of reconsidering and new-modelling adjudications will be exercised with great delicacy and caution. Adjudications once deliberately made, are held as forming part of the settled law, notwithstanding this occasional interference with the rule. An occasional deviation does not impair the character of a fixed rule. When an adjudication is once deliberately made by a court competent to settle the law, the power of disturbing or remodelling it does not belong to the tribunal of a foreign government. If such a point came up in the supreme court of any other state, upon the local law of New Jersey, and it might come up incidentally, such a decision as in Arnold v. Mundy would be implicitly followed. The courts at Westminster Hall would implicitly follow it. This court, under the decision of Green v. Neal, would implicitly follow it.

            Is the supreme court of New Jersey competent to settle law; or must it be carried up to the court of appeals? The appeals to that court are only occasional; there are no reports of their decisions. The decisions of the supreme court are all reported by law; and they have, by force of law and usage, the authority of binding precedents, in the state, when not appealed from. When cited in other cases, even in the court of appeals, they are respected as precedents and as state law; more especially, when they have stood for years, and have become the basis of business transactions and of legislative action, as in the present case.

            It is also objected, that there has been but one decision upon this point. One decision, fully and thoroughly investigated, may be more effective, than half a dozen decisions slightly considered. This ought not to be made a question of arithmetic. There are seldom, in any case, fully discussed, more than one decision, because a court will not, unless in a very special case, hear a second argument in the same or in another cause on the same point. It may, in other cases, be incidentally alluded to, but this can add little weight to the force of the decision. If that is wanted, we have it in this case. The doctrine was incidentally passed upon in 1 Penning. 391. Tidewaters were there held by the court, and admitted by all the counsel, to be public navigable rivers. *392 The oyster fishery, there, was only deemed to be public and common on that account. It has nowhere been decided by this court, that there must be more than one decision, or a decision of the court of appeals, in those states where they have such courts, in order to introduce a case into the settled law of the state; such a doctrine, if carried out, would unsettle a vast body of law, and would be productive of infinite mischief in those states where a branch of the legislative body forms an occasional court of appeal. Remarks made by the court in the case before them, must be taken in reference to the circumstances. In a case where the decision was by the state court of appeals, it may be said to form a part of the settled law; so, where there have been several decisions, as sometimes happens in will cases, they may be said to have the same effect; but it does not follow, that one decision may not have the same effect. In 5 Pet. 151, and 6 Ibid. 299, this court followed a single decision of the state courts. A contrary doctrine would lead to unfortunate conflicts between the state and federal judiciary. If this court should attempt to overturn Arnold v. Mundy, it could not be binding upon the state courts. There would then be only one decision here. And upon the principles already settled in this court, they would be bound to respect and follow the decision of their own state court in preference. If this court should believe that the soil was in the plaintiff below, but there was a common right of fishery, for the reason above stated, the judgment should be in favor of the defendants below.

            Ogden, for the defendants in error.--There are two questions in this case: 1. The extent of the grant of King Charles II. 2. The operation and effect of the surrender in 1702, to Queen Anne. The question whether the country, now the United States, was acquired by discovery or conquest, is of no moment in this case.

            The question, what passed to the Duke of York, by the letters-patent, properly divides itself into two portions. 1. What was the thing granted? 2. Had the king the power to make the grant, as it is construed by the defendants in error?

            The grant is of all the lands, soils, rivers, &c., and of all other regalities. 'Soil is the appropriate word to pass land under *393 water. It is not a general term, but an apt and proper one to pass soil under a river; and therefore, when used, passes, by the king's grant, all that is the prerogative right of the king. It is to be holden by the Duke of York and his heirs, in fee-simple, in free and common socage. Now, suppose the deed stopped here, would there be any doubt of its construction? It then grants the powers of government, civil and military. By the grant of the Duke of York, King Charles II. parted with all the premises included within the grant, and also with all his rights of sovereignty or power of government, on condition, and so long as the laws made by the new government were not contrary to the laws of England; reserving only a right of receiving and hearing appeals from provincial judgments and decrees or sentences. He parted with all his prerogative rights in the territory contained in the grant; because having parted with the sovereign power, he must necessarily have parted with all the rights of sovereignty. He parted with his crown and with all the rights attached to it; and he had no prerogative rights remaining in him, except those expressly reserved. The Duke of York, and the proprietors of New Jersey under him, were seised and possessed of all the rights of the King of England, both of property and government.

            This presents the point, had the king power to make such a grant? It seems to the counsel for the defendants in error, to be placing this question on too narrow a ground, to put the validity of this grant, upon the king's prerogative rights. Those rights were, from their nature, and must be, confined to England. This grant, parting not only with the soil, but with the government of the country granted by him, transcends all his prerogative rights under the common law of England. He, as king, cannot grant a right of sovereignty over any part of England. This right to part with and convey the property and sovereignty of government of this territory, must be traced to the great principles of national law, applicable to every nation, to every sovereign in whom is the power of disposing of any property which the nation has acquired either by conquest or discovery. The correctness of this view of sovereign power, must be judged of, not by the common law, but according to the law of nations.

            *394 It is considered a cession by a sovereign to one of his subjects, but it is intended to vest in that subject a territory with all the rights of government; and it must be construed as if it were a cession to another sovereign. By the treaty of 1783, the king of Great Britain ceded all his right and sovereignty over the United States. Did not the rivers and the soil under them pass, without apt and special words to include all his regalities? This was a newly-acquired territory, then a wilderness; the settlement and improvement of it were great objects with the crown. In order to effect this, it was intended to hold out great inducements to Englishmen and others, to come over and inhabit it. Self-government was always a favorite object with the people of England, who were strongly imbued with a love of liberty; and in furtherance of that object, this grant, and the power and property included in it, were made and granted by the king. The people were to be subject to their allegiance to the crown; but not to be subject to all the prerogatives vested in the king by the common law.

            To a certain extent, this was a part of one and the same nation. The enemies of England, in time of war, were their enemies; and in time of peace, they were at peace with every nation with whom England was at peace. But to a great extent, they were an independent government; making their own laws, holding treaties with the Indians, naturalizing citizens, and exercising full legislative authority; restrained only by the condition contained in the patent, with an exclusive power of taxing their inhabitants, &c. To assert that they held all their rights, and exercised all their power, subject to the common law prerogative of the king of England, would be contrary to common sense. To one prerogative, from their peculiar and anomalous situation, they were subject, the power of the king to declare war and to make peace; but to nothing else. The exercise of the royal prerogative had, in many cases, been considered as leading to acts of tyranny, in England; and to avoid being no longer within it, was, no doubt, one great inducement to many to leave that kingdom; and they never could believe, that those prerogative rights were to follow them in their new homes.

            *395 In connection with this point in the argument, it is important to refer to dates. The patent of Charles II. to the Duke of York was dated on the 12th of March 1664. The duke conveyed to Berkley and Carteret on the 24th June 1664. The concession and agreement made by Berkley and Carteret with all and every the adventurers, and all such as shall settle or plant there, bears date the 10th of February 1664. If this was before the grant to the Duke of York, it is probable, the concessions were known and approved by the king, before he made the grant to the duke. Whether, therefore, these grants, concessions and agreements of Berkley and Carteret were made after or before the letters- patent, is of no consequence.

            By the 25th article of the concessions, we find the proprietors acting and erecting a government of their own, with the knowledge and consent of the king, with three distinct departments, legislative, executive and judicial; and free, it is apprehended, from all the common-law prerogatives of the crown of England, and subject only to one great prerogative, that of making war and peace. In confirmation of this doctrine, the court are referred to Salk. 666, where Lord HOLT says, 'the law of England does not extend to Virginia; her law is what the king pleases.' In the opinion or Lord HOLT, the power of the king was unlimited; restrained or governed by no principle of the common law. He had a right, then, to grant New Jersey, without any reference to the laws of England, or to his prerogatives under those laws. He could give no stronger evidence of his pleasure, than by the words of the grant made by him to the Duke of York.

            But if this case is to be determined according to the strictest and most technical rules of the common law, let us now examine that law, and see what will be the result upon the questions in this case. It is contended by the counsel for the plaintiffs in error, that the prerogative rights of the king to rivers, in which the tide ebbs and flows, to the bays and inlets from the sea, to the soil under the rivers, and to the fisheries, are held by him in trust for the use of all his subjects; and cannot be transferred by him to an individual. *396 If these were the trusts upon which the king held these rights, it is presumed, that the state of New Jersey must now hold them upon the same trusts. By the revolution, the state acquired all the rights which belonged to the crown, but none others. If the king held all the rights upon the trusts mentioned, the state must hold them upon the same trusts. But by the legislation of New Jersey, all such trusts are denied. Acts of the legislature of New Jersey of November 24th, and December 27th, 1818. These acts authorize the leasing of those flats, or land, or soil under the water, to any individual, and not to the riparian owners of the soil only, but to any one who shall pay the state a certain annual rent; and have actually leased to the plaintiffs in error the premises in dispute, for a term of years, none of whom are stated to be the owners of the adjacent shores. If the legislature of New Jersey have the power to lease for years, they may do so for life or in fee. So long as they have the power to convey any interest or estate in the premises to individuals, the nature and continuance of the estate to be conveyed or granted must depend entirely and exclusively on the legislative discretion.

            By what course of reasoning do the counsel for the plaintiffs in error arrive at the conclusion, that the state have now the power to make a disposition of this property for private purposes, and that the crown, anterior to the revolution, had no such power or right. It is not intended to consume the time of the court, by reading the cases referred to in the argument already addressed to the court by the counsel for the defendants in error. The principles contained in these authorities will be stated. All rivers, bays which are what are called arms of the sea, in which the tide ebbs and flows, and the soil under them, below high-water mark, and the rights of fisheries in these rivers, prima facie belong to the king. They may, however, belong to a subject; but he must show his title to them. He may show, either an actual grant, or he may show a title by prescription, which always supposes a grant. A grant from the king of a river, and the soil under it, passes a right of fishery to the grantee. It was, for some time, made a *397 question, whether there could be a several right of fishery, without the ownership of the soil; all the cases on that subject necessarily admit that the right of soil under the river may be vested in an individual. There are but two cases from which a contrary doctrine can be deduced; they are the cases in 6 Mod. 73, and 5 Rob. 159. But this court, it is confidently believed, will not suffer these two cases to overrule the mass of authorities cited for the defendants in error, nor the authority of Sir MATTHEW HALE, one of the most learned and accurate lawyers that ever lived.

            To proceed to the second point: what rights were surrendered by the proprietors to the crown, by the deed of surrender of 1702? It will be recollected, that the original grant from Charles II., was not only of the property, but of the government of the territories granted; all civil and military power was granted. In 1702, the proprietors surrendered their right of government, and nothing else; whatever was a right of property was retained by them; whatever was necessary for the government, was surrendered by them. Certainly, the surrender never intended to abandon any of the property, and to enable the queen to grant it. It has been shown, that the property in the soil was granted to those who held under the letters-patent of Charles II., as property. It is, then, evident, that it never was surrendered to the crown. If it never was granted as property, but was a part of the powers of government, necessarily appertaining to it, then it was not surrendered. As has been shown by the cases cited, the soil under a river may be granted by the crown to a subject, and the government still goes on. This fully establishes the position, that the retaining such property in the crown is not necessary to the existence and administration of the government. The proprietors exercised privileges which are essential to every government. They established forts; a fort was erected at Amboy. They continued, after the surrender, to use and exercise all rights of property in the territory for its protection and for their advantage.

            This is not a case of local law, and the decisions of the courts of New Jersey are not entitled to authority *398 in the courts of the United States, as they would be on the construction of the statutes of New Jersey. This court will look at these decisions with respect, but will not yield to them the decision of the question before the court. The court are now called upon to give a construction to a patent from the king of England, which related to territory as well within the limits of what is now New York, as New Jersey. This is not a local question. For the construction the court are now called upon to gave to these letters-patent, they will look at the interpretation given to them in West Jersey. The people of that part of the territory granted by the letters-patent, have always used the right of fishery in the river Delaware. This right has been derived from grants of the proprietors of West Jersey.

            Wright, for the defendants in error.--The following is a concise statement of the facts of the case. An action of ejectment was instituted in the circuit court of the United States for the district of New Jersey, by the defendant in error, to try the title to land covered with water, situated in the bay of Amboy, near the mouth of the Raritan river. The defendant in error, being plaintiff below, obtained a judgment in the circuit court, on a special verdict; and this writ of error was prosecuted by the defendants.

            In the circuit court, the plaintiffs in the ejectment claimed title under a patent from King Charles II. of England, to his brother James, then Duke of York, executed 12th March 1664, by which the whole of the territory, now the state of New Jersey, including the premises in question, with other large bodies of land, were granted to the Duke of York. By conveyances from the Duke of York and others, the property was claimed to be vested in the defendant in error. The patent describes the land in the usual form of such conveyances from the crown of England, without any exceptions or reservations, with certain islands upon the sea-coast, 'and the lands from the west side of Connecticut river to the east side of the Delaware bay.' This was the grant of property from the king to the duke, and it is not questioned, that the mesne conveyances from the duke down to the plaintiff in the ejectment, have been equally broad and comprehensive to carry the title to the premises in question. In a *399 subsequent part of the patent, full powers of government, civil and military, in and over the territory, are granted to the duke, 'his heirs, deputies, agents and assigns,' reserving only an appeal to the king in favor of any person 'touching any judgment or sentence to be by them made or given.'

            On the 15th of April 1702, the twenty-four proprietors of East New Jersey, 'assignees of the Duke of York,' surrendered to Anne, then Queen of England, the powers of government granted in the patent from the king; which surrender was made in the very terms of the grant in the patent; and that surrender, so made, was accepted by the queen two days after it was made. Under this state of facts, not controverted, the questions in this case are made:

            I. Could the king of England, in conformity with the law of nations and the laws of England, convey, in the year 1664, to a subject of his realm, a valid title to land covered by the water of bays, rivers or arms of the sea, where the tide ebbs and flows, in the province of New Jersey?

            The laws of nature and nations establish the following propositions, pertinent to this question: 1. Every nation is the proprietor as well of the rivers and seas as of the lands within its territorial limits. Vattel 120, § 266. 2. The sea itself, to a certain extent, and for certain purposes, may be appropriated and become exclusive property as well as the land. Vattel 127, § 287; Ruth. book 1, ch. 5, p. 76, § 3. 3. The nation may dispose of the property in its possession, as it pleases; may lawfully alienate or mortgage it. Vattel 117, §§ 261-2. 4. The nation may invest the sovereign with the title to its property, and thus confer upon him the rights to alienate or mortgage it. Vattel 117, §§ 261-2.

            The laws of England establish the following propositions material to this point: 1. The common law of England vests in the king the title to all public property. 1 Bl. Com. ch. 8, 298-9; 2 Ibid. 15, 261-2; Harg. Law Tracts, de Jure Maris, ch. 4, 10, 11, 12; 6 Com. Dig. tit. Prerogative, 60, B. 63; *400 Tenure 337; 5 Com. Dig. tit. Navigation, 107; 3 Co. 5, 109. 2. A subject may acquire the property of navigable rivers and the soil, and of specific localities in the sea itself, by grant or prescription, as he may many other prerogative rights of the king of a like character; and the king may make all these grants to a subject. Harg. Law Tracts, de Jure Maris, ch. 4, 11, 13, ch. 5, 17, 18; Palmer v. Mulligan, 3 Caines 315, 319; People v. Platt, 17 Johns. 195. The Massachusetts cases equally recognise the authority of the law tracts in that state. So, too, are the decisions in other states. 1 Pick. 180; 2 Conn. 481; 2 Binn. 475.

            As it has been said, that no grants to navigable rivers, and the soils and fisheries thereof, have been made since Magna Charta, the following references are made. Davies 155; Hamilton v. Donegall, 3 Ridg. Parl. Cas. 276-328. Other authorities of English elementary authors, and English adjudged cases, sustain Lord HALE in the positions, that the subject can acquire these rights, and that the king has a right to make the grants, and has been accustomed to make them. 1 Bl. Com. 286; 5 Cruise's Dig. 45, § 10, tit. King's Grant, 54; 3 Ibid. 262; Carter v. Murcot, 4 Burr. 2163; s. c. 2164-5; 1 Mod. 105; 5 Com. Dig. 108, tit. Navigation; 6 Ibid. 55, tit. Prerogative; 4 Co. part 7, p. 19; Bulbrook v. Goodere, 2 Burr. 1768. All the following authorities of a date later than the publication of Hargrave's Tracts give to them the highest authority. The Banker's Case, Skin. 601; Mayor of Orford v. Richardson, 4 T. R. 439; 5 Burr. 285; 5 Mod. 556; 3 Barn. & Cres. 875; 2 Bos. & Pul. 472; 5 Barn. & Cres. 268. American cases sustain the right of the king to make such grants. 2 Bing. 476; 4 Mass. 144, 522; 1 Pick. 180; 3 Johns. 357; 6 Ibid. 131; 17 Ibid. 195; 20 Ibid. 90; 1 Conn. 284; 7 Ibid. 486; 2 Ibid. 481; 1 Har. & McHen. 564; 8 Wheat. 577-97.

            Mr. Wright proceeded to examine the cases cited for the plaintiffs in error, in support of the principles contended for by them. He argued, that none of those cases impugned the doctrine he had claimed. Some of the cases were taken from the civil, and not *401 from the common law, to which only the parties must look for the principles to govern the controversy. The difference between the civil and common law rights, and the civil law, are laid down by Bracton. 5 Barn. & Cres. 290, 292-3, 309, 311.

            Blackstone (2 Bl. Com. 39) supposes, that Magna Charta, ch. 16, had restrained the king from granting free fishery, by which he evidently intends 'exclusive fishery, in navigable waters, when the soil is in the king;' but he says it is different as to several fishery, because that must either be in, or be derived from, the owner of the soil.

            The kings of England, then, had the right, by the laws of nations and the laws of England, at least, until the statute of 1 Ann. in the year 1701, to grant in fee, to a subject, the crown lands and various royal franchises, portions of the property and inheritance of the crown, within the realm; and the subject could take, hold, possess and enjoy, in full propriety, according to the grant, the lands and franchises so conveyed to him by the sovereign. It cannot surely be necessary to resort to argument or authority, to prove that the power of the king to make grants to his subjects, either of lands or franchises, in the waste and wilderness province of New Jersey, in 1654 or 1674, was at least as extensive as the power he then possessed to make similar grants within the realm of England.

            Still, it has been objected, that the title of the defendant in error is not sustained by these authorities, and the principles they establish; because it is said, the power of the king to grant is confined to the alienation of his private property, 'his ordinary revenue,' 'lands vested in him upon feudal principles,' and does not extend to the public property, to property held 'by virtue of his prerogative,' in which way only, it is alleged, he holds 'the allodium of the soil of navigable rivers and the sea.' The authorities already cited answer this objection. All the cases establish the power of the king to make the grant, or the right of the subject to hold by prescription, which pre- supposes a grant from the crown as the only lawful commencement of the title. Cited, 3 Cruise's Dig. 244, tit. Franchise, § 1; 5 Ibid. 46, tit. King's Grant, § 7; 2 Bl. Com. 265; 4 Burr. 2165. *402 This objection, however, has no foundation in the English common law, but is entirely subversive of one of its oldest and best-settled principles. The king holds nothing as 'private property,' but everything in jure coronae. Even that which was his private property, before he was king, the moment the crown descends upon him, is held jure coronae, and not as his private property. 6 Com. Dig. 60, tit. Prerogative, D. 64; Skin. 603.

            A second objection is, that by chapters 16 and 23 of the statute of Magna Charta, adopted by the king and parliament of England, in the ninth year of the reign of Henry III., A. D. 1224-5, the power of the king to grant the soil of navigable rivers, ports, havens and arms of the sea was restrained, and the exercise of it as to new grants entirely prohibited, so that any such grants, made subsequent to that statute, are contrary to its provisions, and therefore void. This objection admits of several very conclusive answers; but the one which seems to present itself as first in order, as, if sound, it must be in importance, is----

            1. That neither of these chapters of Magna Charta relate at all to the title of the soil upon which they act, or contain any prohibition whatever against grants of soil anywhere, either by the sovereign or a subject. They merely, in the broadest construction which any one has sought to give to them, prescribe and restrain the use of the soil of the banks and beds of rivers, as it relates to obstructions to navigation and fishing; and that equally whether the propriety of that soil be in a subject, or in the king. This position will not be obviated, if the court shall be of the opinion that, by virtue of these statutes, a common right of fishery in the waters which cover the premises in question was secured to all the subjects of the king, and has passed to the people of the state of New Jersey; because the plaintiffs in error do not defend under any such claim of common right, but under a title in the state of New Jersey, adverse to the title of the defendant in error, and by virtue of which they claim a several fishery, the right to put the waters and banks in defence, to put down wears thereon, not obstructing the navigation, and to exclude, for *403 a term of years, all the other inhabitants of New Jersey from taking fish there.

            2. Another answer to this objection is, that Magna Charta is a mere statute, and it application was local and confined to the realm of England, for which the parliament which passed it was the local legislature, unless subsequently expressly extended to the colonies by competent authority. This is shown upon the face of the statute itself. The preamble contains this language. Cited, Coke's Institutes, part 1, vol. 1, p. 1 (Eng. edit. 1817). In order further to show the proper construction of the 16th chapter of Magna Charta, Mr. Wright also cited 2 Bl. Com. 39; Cruise's Dig. 261, tit. Franchise; Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875; 1 Statutes of Great Britain and Ireland, 579, 718, vol. 2, 213, 242, 644, 688; 7 Co. part. 13, p. 35-36.

            It is believed, that both the objections above enumerated are effectually disposed of by the considerations and authorities presented, and that the proposition before arrived at is fully established, viz: 'That the king of England had the right, by the laws of nations, and the laws of England, at least, until the statute of 1 Anne, in the year 1701, to grant in fee, to a subject, the crown lands, and various royal franchises, portions of the property and inheritance of the crown, within the realm; and the subject could take, hold, possess and enjoy, in full propriety, according to the grant, the lands and franchises so conveyed to him by the sovereign.' This court has adopted these principles, as to the power of the kind over his distant and conquered dominions; and has applied them to the American colonies, especially so far as they relate to grants of the soil of this country, in a great variety of decisions. One of the leading cases, if not the most so, is that of Johnson v. McIntosh, in which the opinion of the court was pronounced by the late Chief Justice MARSHALL. Johnson v. McIntosh, 8 Wheat. 543, 573- 4, 595, 597.

            Whatever then may have been, or may be, the power of the king of England to grant lands within the realm, it is believed, the main question with which this argument commenced, may now be safely answered. That the king of England, in conformity *404 with the laws of nations and the laws of England, could convey, in the year 1664, to a subject of his realm, a valid title to lands covered by the water of bays, rivers and arms of the sea, where the tide ebbs and flows, in the then province of New Jersey; and that the courts of the United States cannot, according to the well-established principles of the laws of nations, of the laws of England, and of the laws of the United States, as applicable to grants of land within the United States, pronounce such a conveyance void, for the want of constitutional and legal power in the king to make the grant.

            II. The next question is, do the letters-patent from the king to the Duke of York, found in the special verdict, in fact, convey the premises claimed by the defendant in error; and to recover which this action is brought? This inquiry must be answered principally from the letters-patent themselves, and in them are found the following grants: Mr. Wright read the charter from King Charles II. to the Duke of York, as set forth in the special verdict; and cited on the construction of the charter, 2 Bl. Com. 347, 348, 346; 7 Conn. 186; Palmer v. Hicks, 6 Johns. 133; 7 Conn. 199-200.

            These letters-patent, then, do convey to the Duke of York the premises in question in this suit, so far as the propriety thereof was vested in the king at the time of the grant. Under these letters-patent, the Duke of York took and held the territory described and conveyed unto him in the same year, when he assigned and transferred the same to Lord Berkley and Cartaret. They thus became the owners of the property and government, and exercised all their rights in the same. Mr. Wright then referred to the grants to the purchasers from Lord Berkley and Cartaret, as stated by the jury, and to the proceedings of the twenty-four proprietors of East Jersey, after they become the owners of the territory and government. He cited Leaming & Spicer, 153, 77, 138, 227, 362.

            III. Did this surrender to the queen of England include, and carry with it, a surrender by the proprietors who made it, of the propriety of the soil covered by the waters of the navigable rivers, bays, ports, haven and arms of the sea, within the territory *405 granted to them under the letters-patent from King Charles II.

            1. Does the deed of surrender, upon its face, reconvey the title to, and property in, that part of the territory of New Jersey in which the premises are situated? By a reference to the charter, it will be seen, that the powers of government were granted by a different instrument from that of the grants of the soil and the appurtenances to it. The two classes of grants are in nowise connected. Leaming & Spicer, 609-15. No construction of the language employed in these patents can be adopted, which, by fair legal interpretation, can be made to amount to a conveyance of a single item of the property granted in the first letters-patent. It is denied, that the grantors in the deed of surrender intended to surrender and reconvey to the crown, any of the rights of soil or of property conveyed to them by the letters-patent of King Charles II. This is shown by the terms of the surrender. Leaming & Spicer, 613, 588-90, 593-4, 596, 619.

            The residue of the argument of Mr. Wright was, upon questions arising on the charter and surrender, on which no opinion was given by the court; and this part of the argument is, therefore, omitted. The opinion of the court was upon the power of the king to grant the soil as claimed under the charter, by the defendant in error, holding under the twenty-four proprietors of East Jersey, as the grantees under the Duke of York.

            The last question for consideration is on the effect of the decision of the supreme court of New Jersey, in the case of Arnold v. Mundy, 1 Halst. 1. Does that decision bind this court in the present case? The principal cases in which this question has been raised and considered or decided in this court, are the following: McKean v. Delancy, 5 Cranch 22, Polk v. Wendall, 9 Ibid. 87; Thatcher v. Powell, 6 Wheat. 119; Blight v. Rochester, 7 Ibid. 535; Daly v. James, 8 Ibid. 495; Elmendorf v. Taylor, 10 Ibid. 152; 11 Ibid. 361; 12 Ibid. 153; 1 Pet. 571.

            The principles deducible from these decisions, and which are to govern the application of the rule, would seem to be the following: *406 1. That the point presented to this court, and upon which its decision is invoked, shall be identical in substance and in law with the point presented to, and decided by the state courts, whose decisions are relied upon as being the guide to this court. 2. The point must arise upon the construction of a legislative act of the state, whose courts have given the construction relied upon; or as to what is the local law of that state, relating to the title to real property in the given case. 3. The decision of the state court upon the point presented, must have remained so long, and have been so uniform, as to authorize the presumption of acquiescence on the part of the people and authorities of the state, and to have made the decisions of these courts upon that point a settled and established rule of law, as to titles to lands within the state.

            Mr. Wright then went into a particular examination of the case of Arnold v. Mundy, and contended, that the decision did not come, in any manner, within the principles he had stated, and which are sustained in the cases referred to. In this examination he cited Harg. Law Tracts, de jure Maris, ch. 1, p. 5; 1 Mod. 105. Upon this point, after the examination of the case, he said: For each and all of these reasons, the decision of the supreme court of New Jersey in the case of Arnold v. Mundy, cannot be considered as establishing a rule of law as to real property in that state, binding upon this court in the decision of this cause. Wilkinson v. Leland, 2 Pet. 656; Hinde v. Vattier, 5 Ibid. 401. After the analysis of the report of that case, which has been before made, it is believed, that this court will follow the rule laid down in these two cases, and say, that the circuit court of New Jersey, in the case in question, was bound to decide, as the state courts ought to have decided the same great questions, when presented to them for decision. In that case the rules of the English common law, and not those of the civil law, will be the guide to a decision here.

            TANEY, Ch. J., delivered the opinion of the court.

            This case is brought here by writ of error from the circuit court of the United States for the district of New Jersey. It was fully argued at the last term. But it was not then decided; *407 because the important principles involved in it, made it proper that the case should be heard and determined by a full court, and as some of the justices were not present at the former hearing, a re-argument was ordered. In pursuance of this order, it has been again elaborately discussed by counsel; and having been carefully considered by the court, I am instructed to deliver their opinion.

            The questions before us arise upon an action of ejectment, instituted by the defendant in error, who was the plaintiff in the court below, to recover one hundred acres of land, covered with water, situated in the township of Perth Amboy, in the state of New Jersey. At the trial in the circuit court, the jury found a special verdict, setting forth, among other things, that the land claimed lies beneath the navigable waters of the Raritan river and bay, where the tide ebbs and flows. And it appears, that the principal matter in dispute, is the right to the oyster fishery in the public rivers and bays of East New Jersey.

            The plaintiff makes title under the charters granted by Charles II. to his brother, the Duke of York, in 1664 and 1674, for the purpose of enabling him to plant a colony on this continent. The last-mentioned grant is precisely similar to the former in every respect, and was made for the purpose of removing doubts which had then arisen as to the validity of the first. The boundaries in the two charters are the same, and they embrace the territory which now forms the state of New Jersey. The part of this territory known as East New Jersey, afterwards, by sundry deeds and conveyances, which it is not necessary to enumerate, was transferred to twenty-four persons, who were called the proprietors of East New Jersey; who, by the terms of the grants, were invested, within the portion of the territory conveyed to them, with all the rights of property and government which had been originally conferred on the Duke of York by the letters-patent of the king. Some serious difficulties, however, took place, in a short time, between these proprietors and the British authorities; and after some negotiations upon the subject, they, in 1702, surrendered to the crown all the powers of government, retaining their rights of private property.

            The defendant in error claims the land covered with water, mentioned in the declaration, by virtue of a survey made in 1834, *408 under the authority of the proprietors, and duly recorded in the proper office. And if they were authorized to make this grant, he is entitled to the premises, as owner of the soil, and has an exclusive right to the fishery in question. The plaintiff in error also claims an exclusive right to take oysters in the same place; and derives his title under a law of the state of New Jersey, passed in 1824, and a supplement thereto, passed in the same year. The point in dispute between the parties, therefore, depends upon the construction and legal effect of the letters-patent to the Duke of York, and of the deed of surrender subsequently made by the proprietors.

            The letters-patent to the duke included a very large territory, extending along the Atlantic coast from the river St. Croix to the Delaware bay, and containing within it many navigable rivers, bays and arms of the sea; and after granting the tract of country and islands therein described, 'together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowlings, 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 the estate, right, title, interest, benefit and advantage, claim and demand of the king, in the said land and premises;' the letters-patent proceed to confer upon him, his heirs, deputies, agents, commissioners and assigns, the powers of government; with a proviso, that the statutes, ordinances, and proceedings established by his authority, should 'not be contrary to, but as nearly as might be agreeable to, the laws, statutes and government of the realm of England; saving also an appeal to the king, in all cases, from any judgment or sentence which might be given in the colony, and authorizing the duke, his heirs and assigns, to lead and transport out of any of the realms of the king to the country granted, all such and so many of his subjects, or strangers not prohibited, or under restraint, who would become the 'loving subjects' of the king, and live under his allegiance, and who should willingly accompany the duke, his heirs and assigns.'

            The right of the king to make this grant, with all of its prerogatives and powers of government, cannot, at this day, be questioned. *409 But in order to enable us to determine the nature and extent of the interest which it conveyed to the duke, it is proper to inquire into the character of the right claimed by the British crown, in the country discovered by its subjects, on this continent; and the principles upon which it was parcelled out and granted.

            The English possessions in America were not claimed by right of conquest, but by right of discovery. For, according to the principles of international law, as understood by the then civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practised towards the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe, at their pleasure, as if it had been found without inhabitants. The grant to the Duke of York, therefore, was not of lands won by the sword; nor were the government or laws he was authorized to establish intended for a conquered people.

            The country mentioned in the letters-patent was held by the king in his public and regal character, as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit of the nation; and the crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains; and upon these principles rest the various charters and grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. McIntosh, 8 Wheat. 595. In that case, the court, after stating it to be a principle of universal law, that an uninhabited country, if discovered by a number of individuals who owe no allegiance to any government, becomes the property of the discoverers, proceed to say, that, 'if the discovery be made and possession taken under the authority of an existing government, which is acknowledged by the emigrants, acknowledged by the emigrants, it that the discovery is made for the benefit of the whole nation; and the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the *410 national domains; by that organ, in which all territory is vested by law. According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation, and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the island of Great Britain.'

            This being the principle upon which the charter in question was founded, by what rules ought it to be construed? We do not propose to meddle with the point which was very much discussed at the bar, as to the power of the king, since Magna Charta, to grant to a subject a portion of the soil covered by the navigable waters of the kingdom, so as to give him an immediate and exclusive right of fishery, either for shell-fish or floating fish, within the limits of his grant. The question is not free from doubt, and the authorities referred to in the English books cannot, perhaps, be altogether reconciled. But from the opinions expressed by the justices of the court of king's bench, in the case of Blundell v. Catterall, 5 Barn. & Ald. 287, 294, 304, 309; and in the case of the Duke of Somerset v. Fogwell, 5 Barn. & Cres. 883-4, the question must be regarded as settled in England, against the right of the king, since Magna Charta, to make such a grant. The point does not, however, arise in this case, unless it shall first be decided, that in the grant to the Duke of York, the king intended to sever the bottoms of the navigable waters from the prerogative powers of government conferred by the same charter; and to convert them into mere franchises in the hands of a subject, to be held and used as his private property. And we the more willingly forbear to express an opinion on this subject, because it has ceased to be a matter of much interest in the United States. For when the revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. A grant made by their authority must, therefore, manifestly be tried and determined by different principles from those which apply to grants of the British crown, *411 when the title is held by a single individual, in trust for the whole nation.

            Neither is it necessary to examine the many cases which have been cited in the argument on both sides, to show the degree of strictness with which grants of the king are to be construed. The decisions and authorities referred to apply more properly to a grant of some prerogative right to an individual, to be held by him as a franchise, and which is intended to become private property in his hands. The dominion and property in navigable waters, and in the lands under them, being held by the king as a public trust, the grant to an individual of an exclusive fishery in any portion of it, is so much taken from the common fund intrusted to his care for the common benefit. In such cases, whatever does not pass by the grant, still remains in the crown, for the benefit and advantage of the whole community. Grants of that description are, therefore, construed strictly; and it will not be presumed, that he intended to part from any portion of the public domain, unless clear and especial words are used to denote it. But in the case before us, the rivers, bays and arms of the sea, and all prerogative rights, within the limits of the charter, undoubtedly passed to the Duke of York, and were intended to pass, except those saved in the letters- patent. The words used evidently show this intention; and there is no room, therefore, for the application of the rule above mentioned.

            The questions upon this charter are very different ones; they are--Whether the dominion and propriety in the navigable waters, and in the soils under them, passed, as a part of the prerogative rights annexed to the political powers conferred on the duke? Whether, in his hands, they were intended to be a trust for the common use of the new community about to be established; or private property to be parcelled out and sold to individuals, for his own benefit? And in deciding a question like this, we must not look merely to the strict technical meaning of the words of the letters-patent. The laws and institutions of England, the history of the times, the object of the charter, the contemporaneous construction given to it, and the usages under it, for the century and more which has since elapsed, are all entitled to consideration and weight. It is not a deed conveying private property, to be interpreted by the rules applicable to cases of that description. *412 It was an instrument upon which was to be founded the institutions of a great political community; and in that light it should be regarded and construed.

            Taking this rule for our guide, we can entertain no doubt as to the true construction of these letters-patent. The object in view appears upon the face of them. They were made for the purpose of enabling the Duke of York to establish a colony upon the newly-discovered continent, to be governed, as nearly as circumstances would permit, according to the laws and usages of England; and in which the duke, his heirs and assigns, were to stand in the place of the king, and administer the government according to the principles of the British constitution. And the people who were to plant this colony, and to form the political body over which he was to rule, were subjects of Great Britain, accustomed to be governed according to its usages and laws.

            It is said by HALE, in his treatise de Jure Maris, Harg. Law Tracts 11, when speaking of the navigable waters, and the sea on the coasts within the jurisdiction of the British crown, 'that although the king is the owner of this great, coast, and as a consequent of his propriety, hath the primary right of fishing in the sea, and creeks and arms thereof, yet the common people of England have, regularly, a liberty of fishing in the sea, or creeks or arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty.'

            The principle here stated by HALE, as to 'the public common of piscary' belonging to the common people of England, is not questioned by any English writer upon that subject. The point upon which different opinions have been expressed, is whether, since Magna Charta, 'either the king or any particular subject can gain a propriety exclusive of the common liberty.' For, undoubtedly, rights of fishery, exclusive of the common liberty, are, at this day, held and enjoyed by private individuals under ancient grants. But the existence of a doubt as to the right of the king to make such a grant, after Magna Charta, would, of itself, show how fixed has been the policy of that government on this subject, for the last six hundred years; and how carefully it *413 has preserved this common right for the benefit of the public. And there is nothing in the charter before us, indicating that a different and opposite line of policy was designed to be adopted in that colony. On the contrary, after enumerating in the clause herein before quoted, some of the prerogative rights annexed to the crown, but not all of them, general words are used, conveying 'all the estate, right, title, interest, benefit, advantage, claim and demand' of the king, in the lands and premises before granted. The estate and rights of the king passed to the duke, in the same condition in which they had been held by the crown, and upon the same trusts. Whatever was held by the king, as a prerogative right, passed to the duke in the same character. And if the word 'soils' be an appropriate word to pass lands covered with navigable water, as contended for on the part of the defendant in error, it is associated in the letters-patent with 'other royalties,' and conveyed as such. No words are used for the purpose of separating them from the jura regalia, and converting them into private property, to be held and enjoyed by the duke, apart from and independent of the political character with which he was clothed by the same instrument. Upon a different construction, it would have been impossible for him to have complied with the conditions of the grant. For it was expressly enjoined upon him, as a duty in the government he was about to establish, to make it, as near as might be, agreeable, in their new circumstances, to the laws and statutes of England; and how could this be done, if in the charter itself, this high prerogative trust was severed from the regal authority? If the shores, and rivers and bays and arms of the sea, and the land under them, instead of being held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shell-fish as floating fish, had been converted by the charter itself into private property, to be parcelled out and sold by the duke, for his own individual emolument? There is nothing, we think, in the terms of the letters- patent, nor in the purposes for which it was granted, that would justify this construction. And in the judgment of the court, the lands under the navigable waters passed to the grantee, as one of the royalties incident to the powers of government; and were to be held by him, in the same manner, and for the same purposes, that the navigable *414 waters of England, and the soils under them, are held by the crown.

            This opinion is confirmed, by referring to similar grants for other tracts of country upon this continent, made about the same period of time. Various other charters for large territories on the Atlantic cost, were granted, by different monarchs of the Stuart dynasty, to different persons, for the purposes of settlement and colonization, in which the powers of government were united with the grant of territory. Some of these charters very nearly resembled in every respect the one now in controversy; and none of them, it is believed, differed materially from it, in the terms in which the bays, rivers and arms of the sea, and the soils under them, were conveyed to the grantees. Yet, in no one of these colonies, has the soil under its navigable waters, and the rights of fishery for shell-fish or floating fish, been severed by the letters-patent from the powers of government. In all of them, from the time of the settlement to the present day, the previous habits and usages of the colonists have been respected, and they have been accustomed to enjoy in common, the benefits and advantages of the navigable waters, for the same purposes, and to the same extent, that they have been used and enjoyed, for centuries, in England. Indeed, it could not well have been otherwise; for the men who first formed the English settlements, could not have been expected to encounter the many hardships that unavoidably attended their emigration to the new world, and to people the banks of its bays and rivers, if the land under the water at their very doors was liable to immediate appropriation by another, as private property; and the settler upon the fast land thereby excluded from its enjoyment, and unable to take a shell-fish from its bottom, or fasten there a stake, or even bathe in its waters, without becoming a trespasser upon the rights of another. The usage in New Jersey has, in this respect, from its original settlement, conformed to the practice of the other chartered colonies. And it would require very plain language in these letters-patent, to persuade us that the public and common right of fishery in navigable waters, which has been so long and so carefully guarded in England, and which was preserved in every other colony founded on the Atlantic borders, was intended, in this one instance, to be taken away. But we see nothing in the charter to require this conclusion.

            *415 The same principles upon which the court have decided upon the construction of the letters-patent to the Duke of York, apply with equal force to the surrender afterwards made by the twenty-four proprietors. It appears by the special verdict, that all the interest of the duke in East New Jersey, including the royalties and powers of government, were conveyed to these proprietors, as fully and amply, and in the same condition, as they had been granted to him; and they had the same dominion and propriety in the bays, and rivers and arms of the sea, and the soil under them, and in the rights of fishery, that had belonged to him under the original charter. In their hands, therefore, as well as in those of the duke, this dominion and propriety was an incident to the regal authority, and was held by them as a prerogative right, associated with the powers of government. And being thus entitled, they, in 1702, surrendered and yielded up to Anne, Queen of England, and to her heirs and successors, 'all the powers and authorities in the said letters-patent granted, to correct, punish, pardon, govern and rule all or any of her majesty's subjects or others, who then were inhabitants, or thereafter might adventure into or inhabit within the said province of East New Jersey; and also to nominate, make, constitute, ordain and confirm any laws, orders, ordinances, directions and instruments for those purposes, or any of them; and to nominate, constitute or appoint, revoke, discharge, change or alter any government or governors, officers or ministers, which were or should be appointed within the said province; and to make, ordain and establish any orders, laws, directions, instruments, forms or ceremonies of government and magistracy, for or concerning the same, or on the sea, in going to or coming from the same; or to put in execution, or abrogate, revoke or change such as were already made, for or concerning such government, or any of them; and also all the powers and author