Martin v. Lessee of Waddell

Mr. Chief Justice Taney

delivered the opinion of the Court.

This cáse -is brought here by writ of error, from the Circuit Court of the United.States, for the district of. New Jer-sey. 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 bv a full Court; and as some of the justiceS'Weie not present at the former hear-mg, á re-argument was ordered; In- pursuance of'this oidef, it has been again elaborately discussed by ’counsel s and having beeii carefully considered bythe Court,;! am instructed to deliver their opinion. ■

■ The questions before us arise upon an action of ejectment, in*' stitiited-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 Jérseyi ■ At the trial iii the Circuit Court, the. 'jury found a special verdict, setting forth, among other things; that the land claimeu lies beneath the. navigable waters of the Raritan river arid bay, where the tide ebbs, and flows.. Arid it appears'that the' principal matter in dispute, is the right to-the' oyster fishery in thé .public rivers and bays.of East New Jersey.

-, The plaintiff makes title under the charters granted by. Charles the Second to his brother the Duke of York, in 1664 and 1674, for’ the purpose of enabling hipa to plant a colony on this continent. • The last-mentioned grant is' precisely .similar to the former in every respect, and was made far the purpose of removing doubts which had then arisen as to..fhe validity of the-first.

The boundaries in the two chartersi 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 Jérsey, afterwards,. by"sundry deeds and conveyances,.'which it is not- necessary to enumerate, was trarisferred 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 bythe 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 tó 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 ouryey .made in 1834, *408 under the authority'of the proprietor^, 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 exclusivé fight 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 theDelaware bay, and containing within it many navigable rivers, bays, and arms ol the sea; and after granting the tract of country and islands therein described, “together with all the lands, islands, soils, rivers, harbours, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings, and fowlings, and all other royalties, profits, commodities, and hereditaments to the S8 id 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 ques *409 tioned. 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 then understood by the 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, yét 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. M Intosh, 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 -acknowlédged by the emigrants, it is supposed to be equally well settled 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 dominions; 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 ihe 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 rebognised in America as in the island of -Great Britain.”

This being the principle upon which the charter , in .question was founded, by what rules oughv 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 tó a subject a portion of the soil covered by the navigable waters of the kingdom, so as to give rim an immediate and exclusive rignt 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 Blundall v. Catterall, 5 Barn. and Ald. 287, 294, 304, 309; and in the case of The Duke of Somersett v. Fogwell, 5 Barn. and Cress. 883, 884, 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 he held and used as his private property. And we the more willingly forbear fo express an .opinion,-on this subjeot, 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-; ap.d in that character hold the absolute right to all their navigable waters -and the soils under them for-their-own conpnon 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 iii trust for the whole, nation.

Neither is-it necessary to examine the many casés whieh have been cited in the argument on both sides, to show the degree of strictness with which grants of the king ate 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 hapds. 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 áre 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 truss- 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. w.e must not look merely to the strict technical meaning of the words of the ietters patent. The laws and institutions of England, thp 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. Anri 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, arid 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, or in the purposes for which it was granted, that would justify this construction. And in the judgment of the Court, the land 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 thém, are- held , by the crown.

This opinion' is confirmed by referring ¿o similar. grants for other tracts-pf cptintry upon this continent, made, about the same period of. time. Various other charters for large territories on the Atlantic coast, 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 cólonies.has the soil under its navigable waters, and the rights of fishery for shell-fish or floating fish, beén¡ 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 iisages'of the colonists have been respected, and they-have been accustomed toenjoy in common, the benefits and advantage 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,,bay9 and.fivers 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 una ole to take a; shell-fish from its bottom, or fasten there a stake, pi even bathe, in. its waters without; becoming a trespasser ffpoh 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 lángt ge in these lettérs patent to persuade us . thaf the public and corhinon right of fishery in navigable waters, which has been so liong and so careMly guarded in England, and whieh was preserved in every other cólpny founded on the Atlantic, bórdem, was intended; iá 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-tour proprietors, it appears by the special verdict, that all the interest ot the duke in East New Jersey, including- the royalties and Dowers 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 river's, 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 dominión 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 b.eing thus entitled, they,,in- 1702, surrendered'-and yielded up to Anne, Queen of England, and* to he? heirs and successors,' “all the powers and, authorities in the said ltettérs.patent granted» to correct, punish, pardon, govern and rule all. or any of 'her majesty^ 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 governor or governors, officers or ministers, which were or ■ should be appointed within the said, province'; and to make, o.rdain, and establish any Orders, laws, directions,, instruments, forms, or cerer monies 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 authorities by the-said letters patent 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 the.re without 'the. license'of theip> the'said proprietors, .their heirs and assigns ; and all other-the powers, authorities, and/privileges 'of and -cíónceming-the government of the province last -aforesaid, or the um» *416 bitants thereof, which were granted or mentioned to be granted by the said several above-recited letters patent, or either of them;” which said surrender was afterwards accepted by the queen.

We give the words of the surrender as found by the special verdict, and they are broad enough to cover all the- jura regalia which belonged to the proprietors. They yield up “all'the powers, authorities, and privileges of and concerning the government of the province;” and the right in dispute was one of these authorities and privileges. No words are used for the purpose of withholding from the crown any of its ordinary and well-known prerogatives. The surrender, according to its evident object and meaning, restored them in the same plight and condition in which they originally came to the hands of the Duke of York. Whatever he held as a royal or prerogative right, was restored, with the political power to which it was incident. And if the great right of dominion and ownership in the rivers, bays, and arms of the sea, and the soils under them, were to have been severed from the sovereignty, and withheld from the crown; if the right of common fishery for the common people, stated by Hale in the passage before quoted, was intended to be withdrawn, the design to make this important change in this particular territory would have been clearly indicated by appropriate terms; and would npt have been left for inference from ambiguous language.

The negotiations previous to the surrender have been referred to, in order to influence the construction of the deed. But whatever propositions may have been made, or ’ opinions expressed before the execution of that instrument, the deed itself must be-regarded as the final agreement between the parties; and. that deed, by its plain words, re-established the authority of the crown, with all of its customary powers and privileges. And when the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state.

This construction of the surrender is evidently the same with that which it received from dll the parties interested at the time it was executed. For it appears by the history of New Jersey, *417 as gathered from the acts, documents, and proceedings of.the public authorities, that the crown and the provincial .government established by its authority always- afterwards in this, territory, exercised the same prerogative powers that the king was accustomed to exercise in his English dominions. And, as concerns the particular dominion and propriety now in question, the colonial government from timg to time authorized the construction of bridges with abutments on the .soil covered by navigable waters; established posts; authorized the erection of wharves; and, as early as 1719, passed a law for the preservation of the oyster fishery in its waters. The public usages, also, in relation to the fisheries continued to be the same. And from 1702, when the surrender was made, until a very recent date, the people of- New Jersey have exercised and enjoyed the rights of fishery, for shell-fish and floating fish, as a common and undoubted right, without opposition or remonstrance from. the proprietors. The few unimportant grants made by them at different times running into the navigable waters, which were produced in the argument, do net appear to have been recognised as valid by the provincial or state authorities, nor to have been sanctioned by the Courts. And the right now claimed'was not seriously asserted on their part, .before the case of Arnold v. Mundy, reported in 1 Halsted, 1; and which suit was not instituted until the year 1818 : and, upon that occasion, the Supreme Courtof the state held, that the claim made by the proprietors was without foundation.

-The effect of this decision by the State Court, has been a good deal discussed at the bar. It is insisted by the plaintiffs in error that, as the matter in dispute is local in its character, and the con-' troversy concerns only fixed property, within the limits of New Jersey, the decision- of her tribunals ought to settle. the construction of the charter; and that the Courts of the United States are bound to follow it. It may, however, be doubted, whether this case'falls within the rule, in relation to the'judgments of State Courts when expounding their own constitution' and laws.

The question here depends, not upon the meaning of instruments framed by the people of New Jersey,- or by their authority, but upon charters granted by the British crown; under which certain rights are claimed by the state, on the one hand, and by *418 private individuals, on, the other. And. if this Court had been of opinion that upon the face- pf these letters patent, -the question -was clearly against the state, arid that the proprietors had been deprived of, their just .rights, by the 'erroneous judgment, of the State Court; it Would, perhaps,-be difficult to:maintain that this. decision of itself bourid the. conscience of. this.Court, ft-is; haWr ever, unquestionably entitled to great. weight. It confirms the Construction uniformly placed, an thesje charters and instruments,. by the other,public authorities.'; and in-which the proprietors had so long acquiesced. '. Public acts arid laws, both of the colonial and state governments,, have been founded upon-this interpreta.tion; and extensive.and valuable improvements made under it. In the case referred to,, the sanction of the judicial authority of the-state is given to,, it.'.’And if the words of the letters paten! had been, far more doubtful than .they are., this decision, made upon such a .question, with great 'deliberation ahd ..research, ought,m our judgment, tp be. regarded as conclusive..

Independently, however, of this'decision of the Supreme Cburt of New Jersey, we ,are of opinion-that the.proprietors are not entitled to the'rights’in question; and the judgment of the Circuit Court must, therefore, be reversed.-

Mr. Justice Thompson, and Mr. Justice-Baldwin, dissented;.