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most efficient measures have been adopted by the go Fourthly, We have to consider the objection made yernment, as far as circumstances have allowed.
by the defendant's counsel to the form of this action. Haring presented a view of the affairs, constituting The first section of the act of New Jersey declares one of the two principal departments of the office of that, from and after the 1st May till the 1st Septemstate under my charge, 1 proceed to expose the con- ber, in every year, no person shall rake on any oysterdition of the internal affairs of the government. bed in this state, or gather any oysters on any banks
LUCAS ALAMAN. or beds within the same, under penalty of 10 dollars.
211 sec. No person, residing in or out of this state, Law Case.
shall, at any time, dredge for oysters in any of the
rivers, bays or waters of the state, under the penalty TERRITORIAL LIMITS.
of 50 dollars. The following, copied from the National Gazette of The 3d sec. prescribes the manner of proceeding
the 3d inst. though it has immediate reference only in cases of violations of the preceding sections. to the catching of oysters, embraces an able expo The two next sections have nothing to do with the sition of some of the most interesting and compre- present case. hensive articles of the federal constitution:
The 6th section, enacts that it shall not be lawful Edward D. Corfield Circuit court of the United States for the
for any person, who is not at the time an actual iphaeastern district of Pennsylvania.
bitant and resident of this state, to gather oysters in Dapjel Carral,
any of the rivers, bays or waters, in this state, on This was one of a number of actions of trespass, board of any vessel not wholly owned by some person originally brought in the district court for the city and inhabitant of, or actually residing in, this state; and county of Philadelphia, to recover damages for an al- every person so offending shall forfeit 10 dollars, and leged interference with the rights of oystermen, and shall also forfeit the vessel employed in the commisthe owners of oyster boats, in the cove of Morris sion of such offence, with all the oysters, rakes, &c. river, Cumberland county, New Jersey.
belonging to the same. The plaintiff was a citizen of Pennsylvania, and the The 7th section provides that it shall be lawful for owner of the Hiram, captured in the act of dredging, any person to seize and secure such vessel, and to on the 15th May, 1821, by the schooner independence, give information to two justices of the county where fitted out from Leesburg, on the river, to enforce such seizure shall be made, who are required to meet obedience to the oyster laws of New Jersey. The for the trial of the said case, and to determine the defendant, a citizen of New Jersey, was one of the same; and, in case of condemnation, to order the said crew of the Independence.
vessel, &c. to be sold. In these circumstances, the case was removed, un The first question then is, whether this act, or der the act of congress, to the circuit court; and, at either section of it, is repugnant to the power granted April sessions, 1823, a verdict taken for the plaintiff, to congress to regulate commerce? Commerce, with subject to the opinion of the court on all the points foreign nations and amongst the several states, can in controversy." At October sessions, 1824, the cause mean nothing more than intercourse with those nawas again fully argued by counsel, and held under ad. tions and among the states, for purposes of trade, be visement.
the object of the trade what it may. This interJ. R. Ingersoll and C. J. Ingersoll, for plaintiff: course must include all the means by which it can be Mcllraine and Condy, for defendant.
carried on, whether by the free navigation of the At the prescnt April sessions, 1825, the opinion of waters of the several states, or by a passage over land the court was delivered by Washington, J., as fol-through the states where such passage becomes nelows:-
cessary to the commercial intercourse between the The points reserved present for the consideration states. It is this intercourse which congress is inof the court many interesting and difficult questions, vested with the power of regulating, and with which wbich will be examined in the shape of objections, no state has a right to interfere. But this power, made by the plaintiff's counsel, to the seizure of the which comprehends the use of and passage over the Hiram, and the proceedings of the magistrates of navigable waters of the sereral states, does, by no Cumberland county, upon whose sentence the de- means, impair the right of the state governments to fendant rests his justification of the alleged trespass. legislate upon all subjects of internal police, within These objections are,
their territorial limits, which is not forbidden by the First, t'hat the act of the legislature of New Jersey, constitution of the United States, even although such of the 9th June, 1920, under which this vessel, found legislation may indirectly and remotely affect comengaged in taking oysters in Morris river cove, by merce, provided it do not interfere with the regulameans of dredges, was seized, condemned and sold, is tions of congress upon the same subject-such are repugnant to the constitution of the United States, in inspection, quarantine and health laws, laws regulatthe following particulars:
ing the internal commerce of the state, laws estab1. To the 8th sec. of the 1st art. which grants to lishing and regulating turnpike roads, ferries, canals, congress the power to regulate commerce with fo- and the like. reign nations and among the several states, and with In the case of Gibbon, vs. Ogden, 9 Wheat. which the Indian tribes.
we consider as full authority for the principles zbore 2. To the 2d sec. of the 4th art. which declares stated, it is said, “that no direct power over these that the citizens of each state shall be entitled to all objects is granted to congress, and, consequently, privileges and immunities of citizens in the several they remain subject to state legislation. If the legisatates.
lative power of the union can reach them, it must 3. To the 20 sec. of the 3d art. which declares/ be for national purposes; it must be when the power that the judicial power of the United States shall ex- is expressly given for a specified purpose, or is cleartend to all cases of admiralty and maritime jurisdic-ly incident to some power which is expressly given.” tion.
But if the power which congress possesses to reIn case the act should be considered as not being gulate commerce does not interfere with that of the esposed to these constitutional objections, it is then state to regulate its internal trade, although the latter insisted
may remotely affect internal commerce, except where Secondly, That the locus in quo was not within the the laws of the state may conflict with those of the territorial limits of New Jersey: But if it was, then, general government, much less can that power im
Thirdly, it was not within the jurisdiction of the pair the right of the state governments to legislate, in magistrates of Cumberland county,
such manner as in their wisdom may seen best, oder
the public property of the state, and to regulate the this precisely the pature of those lars which pre use of the same, where such regulations do not inter- seribe the season when, and the manner in which the fere with the free navigation of the waters of the taking of oysters is permitted? Paving stones, sand state, for purposes of commercial intercourse, nor and many other things are as clearly articles of trade with the trade within the state which the laws of the as oysters--but can it be contended that the laws of United States permit to be carried on.
a state, which treat as tort feasors those who shall take The grant to congress, to regulate commerce on them away without the permission of the owner of the navigable waters belonging to the several states, them, are commercial regulations? renders those waters the public property of the Unit We deem it superfluous to pursue this subject fured States, for all the purposes of navigation and of ther, and close it by stating our opinion to be, that no commercial intercourse, subject only to congressional part of the act under consideration amounts to a reregulation. But this grant contains no cession, either gulation of commerce, within the meaning of the Sth express or implied, of territory, or of public or pri- section of the 1st article of the constitution. vate property. The just privatum which a state has 2. The next question is, whether this act infringes in the soil covered by its waters, the products of that that section of the constitution which declares that soil or waters, is totally distinct from the jus publi- the citizens of each state shall be entitled to all pricum with which it is clothed. The former, such as vileges and immunities of citizens in the several Fisheries of all descriptions, remains common to all states? the citizens of the state to which it belongs, to be The inquiry is, what are the privileges and immuused by thein according to their necessities, or ac- nities of citizens in the several states? We feel no cording to the laws which regulate their use. "Over hesitation in confining these expressions to those prithese,' says Vattel, book 1, chap. 20, sec. 255, 246, vileges and immunites which are, in their nature, fun“sovereignty gives a right to the nation to make laws damental.--which belong, of right, to the citizens of all regulating the manner in which the common goods free governments, and which have, at all times, been are to be used." "He may make such regulations enjoyed by the citizens of the several states which respecting hunting and fishing, as to seasons, as he compose this union, from the period of their becommay think proper, prohibiting the use of certain netsing free, independent and sovereign. What these and other destructive methods.” J. c. sec. 219. The fundamental privileges are, it would perhaps be more jus publicum consists in the right of all persons to tedious than difficult to enumerate. They may, howuse the navigable waters of the state for commerce, ever, he all comprehended under the following genetrade and intercourse, subject, by the constitution of ral heads--protection by the government, the enjoy. the United States, to the exclusive regulation of con- ment of life and liberty, with the right to acquire and gress.
possess properly of every kind, and to pursue and obIt' then the fisheries and oyster beds within the ter- tain happiness and safety, subject, nevertheless, to ritorial limits of a state, are the common property of such restraints as the government may justly prethe citizens of that state, and were not ceded to the scribe for the general good of the whole. The right United States, by the power granted to congress to of a citizen of one state to pass through or to reside regulate commerce, it is difficult to perceive how a in any other state, for purposes of trade, agriculture, law of the state, regulating the use of this common professional pursuits or otherwise-to claim the beproperty, under such penalties and forfeitures, as the nefit of the writ of habeas corpus--to institute and state legislature may think proper to prescribe, can maintain actions of any kind in the courts of the be said to interfere with the power so granted. The state--to take, hold and dispose of property, either act under consideration, forbids the taking of oysters real or personal and an exemption from higher by any person, whether citizens or not, at unseason-| taxes or impositions than are paid by the other citiable times and with destructive instruments: for zens of the state, may be mentioned as some of the breaches of, the law prescribes penalties in some porticular privileges and immunities of citizens which cases and forfeitures in others. But the free use of are already embraced by the general description of the waters of the state, for purposes of narigation and privileges deemed to be fundamental;-- to which may commercial intercourse, is interdicted to no person, be added eleetive franchise, as regulated and estabnor is the slightest restraint imposed upon any to buy lished by the laws or constitution of the state in which and sell, or in any maner to trade within the limits it is to be csercised. These, and many others which of the state.
might be mentioned, are, strictly speaking, privileges It was insisted by the plaintiff's counsel that, as and immunities; and the enjoyment of them, by the oysters constitute an article of trade, a law which citizens of each state, in every other state, was mani. abridges the right of the citizens of other states to festly calculated, (to use the expression of the pretake them, except in particular vessels, amounts 10 amble of the corresponding provision in the old artia regulation of the external commerce of the state.cles of confederation), “the better to secure and But it is a manifest mistake, to denominate that a perpetuate mutual friendship and intercourse among commercial regulation, which merely regulates the ihe people of the different states of the union." use of the colimon property of the citizens of the But we cannot accede to the proposition which was state, by forbidding it to be taken at improper sca- insisted upon by the counsel, that, under this prorisons, or with destructive instruments. The law does siop of the constitution, the citizens of the several not inhibit the buying and selling of oysters after they states are entitied to participate in all the rights which are lawfully gathered, and have become articles of belong exclusively to the citizens of any particular trade; but it forbids the removal of them from the beds state, merely upon the ground that they are enjoyed in which they grow, (in which situation they cannot be by those citizens. Much less, that, in regulating the considered as articles of trade), unless under the re use of the common property of the citizens of such gulations which the law prescribes. What are the state state, the legislature is bound to extend to the citizens inspection laws, but internal restraints upon the buy- of all the other states the same advantages as are seing and selling of certain articles of trade? And yet, cured to their own citizens. the chief justice, speaking of those laws, 6 Wheat. A several fishery, either as the right to it respects 203, observes that their object is to improve the qua- running fish, or such as are stationary, such as oys
les produced by the labor a country, to ters, clams and the like, is as much the property of sit them for exportation; or, it may be, for domestic the individual to whom it belongs as dry land or land use. They act upon the subject before it becomes an covered by water, and is equally protected by the article of foreign commerce, or of commerce among laws of the state against the aggressions of others, ihe states, and prepare it for that purpose." Is not whether citizens or strangers. When these private
rights do not exist, to the exclusion of the commonsidered as admiralty offences at that period, either right, that of fishing belongs to all the citizens or sub- under the common law or the ancient ordinances jects of the state-it is the property of all, to be en- and statutes of the admiralty, it remains yet to be joyed by them in subordination to the laws which re- shown that they became such, and were cognizable gulate its use. They may be considered as tenants, by the judiciary of the United States, independent of in common, of this property, and they are so exclu- some act of the national legislature to render them sively entitled to the use of it, that it cannot be en so. Many of those offences are already incorporated joged by others without the tacit consent or the ex- into the criminal code of the United States; and no press permission of the sovereign who has the power person, it is presumed, will question the power of to regulate its use.
congress, by further legislation, to include many other This power in the legislature of New Jersey, to ex- offences, to which the jurisdiction of the admiralty in clude the citizens of the other states from a participa- England extended at the period abore alluded to. ---* tion in the right of taking oysters within the waters But it is, by no meavs, to be conceded that, because of that state, was denied by the plaintiff's counsel, offences, of the nature we are row considering, may upoa principles of public law, independent of the rightfully belong to the jurisdiction of the English adprovision of the constitution which we are consider- miralty, the power of that government to regulate ing, upon the ground that they are incapable of being her fisheries being unquestionable, congress has a appropriated until they are caught. This argument like power to declare similar acts, or any acts at all, is unsupported we think by authority. Rutherforth, done by individuals in relation to the fisheries within B. I. c. 5. s. 4 and 5, who quotes Grotius as his au- the liinits of the respective states, offences against the thority, lays it down that, although wild beasts, birds United States. There are, doubtless, acts that may be and fishes, which have not been caught, have never, done upon the navigable waters of a state, which the in fact, been appropriated, so as to separate them government of the United States, and that of the state, from the common stock, to which all men are equally have a concurrent power to prohibit and to punish as entitled; yet, where the exclusive right in the water offences-such, for example, as throwing ballast into and soil which a person has accasion to use in taking them, or in any other way impeding the free use and them, is vested in others, no other person can claim navigation of such rivers. But we hold that the the liberty of hunting, fishing, or fowling, on land or power to regulate the fisheries belonging to the sevewaters which are so appropriated. “The sovereign," ral states, and to punish those who sħould transgress says Grotius, b. 2. c. 2. s. 5, "who has dominion over those regulations, was exclusively vested in the the land or waters, in which the fish arc, may prohi- states, respectively, at the time when the present conbit foreigners, [by which expression we understand stitution was adopted, and that it was not surrenderhim to mean others than subjects or citizens of the ed to the United States by the mere grant of admistate), from taking them."
ralty and maritime jurisdiction to the judicial branch That this exclusive right of taking oysters in the of the government. Indeed, this power in the states, to waters of New Jersey, has never been ceded by that regulate their fisheries in navigable rivers and waters, state, in express terms, to the United States, is ad- was not, in direct terms, questioned by the plaintiff's mitted by the counsel for the plaintiffs-and having counsel, and yet their argument upon this point, shown, as we think we have, that this right is a right when followed out to its necessary consequences, of property, vested either in certain individuals or amounts to a denial of that power. in the state, for the use of the citizens thereof, it As to the ancient criminal jurisdiction of the ad. would, in our opinion, be going quite too far, to con- miralty, in cases of misdemeanors, generally commitstrue the grant of privileges and immunities of citi- ted on sea or on waters out of the body of any country, zens, as amounting to a grant of a cotenancy in the we have very respectable authority for believing that common property of the state, to the citizens of all it was not exercised, even if it existed, at the period the other states. Such a construction would, in when the constitution of the United States was forinmany instances, be productive of the most serious ed; and, if so, it would seem to follow, that, to the public inconvenience and injury, particularly in re-exercise of jurisdiction over such offences, some act gard to those kinds of fish, which, by being exposed of the national legislature, to punish them as offences to too general use, may be exhausted. The oyster against the United States, is necessary. We find, beds belonging to a state, may be abundantly sufi- from the opinions of learned and eminent counsel, cient for the use of the citizens of that state, but who were consulted on the subject, that misdemcanmight be totally exhausted and destroyed, if the legis- ars, committed upon the sea, had never been conlature could not so regulate the use of them, as to strued as being embraced by the stat. 23, H. 8, €. esclude the citizens of the other states from taking|15; and that the criminal jurisdiction of the admiralty, them, except under such limitations and restrictions except as exercised under that statute, had beconie as the laws may prescribe.
obsolete; so that, without an act of parliament, incy 3d. It is lastly objected, that this act violates that could not be prosecuted at all. 2 Brown's C. and A. part of the constitution, which extends the judicial law, app'x, 519 to 521. If then it could he adnitted power of the United States to all cases of admiralty that congress might legislate upon the subjectof fisheand maritime jurisdiction. The taking of oysters ries within the limits of the several stales, upon the out of season, and with destructive instruments, such grounds of the admiralty and maritime jurisdiction, as dredges, is said to be an offence against the ancient it would seem to be a conclusive answer to the whole ordinacces and statutes of the admiralty, and that it of the argument on this point. But no such legislation is punished by the admiralty as a misdeineanor. The has taken place, and, consequently, the power of the authority relied upon to establish this doctrine, is state governments to pass laws to regulate the fisheone of sir L. Jenkins' charges, to be found in the 2d rics within their respective limits, remains as it stood rol. of Brown's C. and A. Law, p. 475.
before the constitution was adopted. The amount of the argument is, that some olences, Secondly. The next general question to be copof this kind, are cases of admiralty and maritime ju- sidered is, whether the boundaries of the state of New risdiction. The laws of a state upon the same subject, Jersey include the place where the Hiram was seized Festing in the same tribunals jurisdiction over them, whilst engaged in dredging for oysters. are repugnant to this grant of jurisdiction to the juic The grant from Charles ll. to his brother the duke diciary of the United States.
of York, of the territory of which the present state of This argument, we think, cannot be maintained.- New Jersey was a part, dated 12th Narch, 1663----, For, although the various misdemeanors, enumeraied was of all ihat territory lying between the rivers St by sir L. Jenkins in his charges, may have been conCroix, adjoining Nova Scotia, and extrading along the
sca coast, southerly, to the eastside of the Delaware the river Delaware, annexed to their respective bay, together with all islands, soils, rivers, harbors, shores, and providing that each state should exercise marshes, waters, lakes, fishings, huntings, sportings, a concurrent jurisdiction on the said river. and all the royalties, profits, commodities, heredita These acts prove, beyond a doubt, that the proments and appurtenances, to the same belonging and prietaries of west New Jersey, from a very early peappertaining, with full power to govern the same. riod, asserted a right to the river Delaware, or to
The grant of the duke of York, dated 24th June, some part thereof, below low water mark, and along 1664, to lord Berkley and sir Geo. Carteret, after its whole length: and, since the western boundary of reciting the above grant, conveys to them all that the province, under the grant of the duke of York, tract of land, lying to the westward of Long Island was precisely the same on the bay as on the river, and Manhatten Island, bounded, on the east, part by it may fairly be presumed, independent of his grant the main sea, and part by Hudson's river, "and hath to the proprietaries in 1680, and the concessions upon the west Delaware bay or river, and extended made by them in the year 1676, that this claim was exsouthward,” &c. "with all rivers, fishings, and all tended to the bay for the purpose of navigation, fishother royalties to the said premises belonging,' &c. ing and lowling
There is no material difference between thesc In this state of things the revolution was commencgrants, as to the boundaries of New Jersey, on the ed and conducted to a successful issue, when his Briwestward, and we are of opinion that, although the tannic majesty, by the treaty of peace, acknowledged rule of the law of nations is, that where a nation the several states to be sovereign and independent, takes possession of a country, separated by a river and relinquished all claims, not only to the governfrom another nation, and it dont appear which had the ment, but to the proprietary and territorial right of prior possession of the river, they shall each extend the same. The right of the crown to the bay and to the middle of it; yet that, when the claim to the river Delaware being thus extinguished, it would country is founded, not on discovery, and occupancy, seem to follow that the right, claimed by New Jersey but on grant, the boundary on the river must depend in those waters, was thereby confirmed, unless a betupon the just construction of the grant and intention ter title to the same should be found to exist in some of the parties, to be discovered from its face. Tak- other state. Whether the claim of New Jersey exing this as the rule, we think that the claim of New tended to the middle of the bay, as we see, by the Jersey, under these grants, to any part of the bay or compact with Pennsylvania, it did to the middle of river Delaware, below water mark, cannot be main- the river, is a question which we have no means of tained. The principle here suggested is, we conceive, solving. But that the proprietors and inhabitants of fully recognized and adopted by the supreme court, west New Jersey made use of the bay, both for nariin the case of Handly's lessee v. Anthony, 5 Wheat. gation and fishing, under a claim of title from a periNeither do we conceive that the limits of the state od nearly coeval with the grants of the province, can can, by construction, be enlarged by virtue of the hardly admit of a doubt. This right, indeed, is esgrant of all rivers, fishings, and other royalties, which pressly granted by the duke of York to William expressions ought, we think, to be confined to rivers, Penn and the other proprictarics of west New Jerfishings, and royaltics, within the boundaries of the sey, by his grant, bearing date 6th Aug. 1680. It granted premises. This appears to have been the opi- contains a grant, not only of all bays and rivers, to the nion of the crown lawyers, who were consulted, more grantei! premises belonging, but also the free use of al! than a century ago, respecting the boundaries of New bays and rivers leading into or lying between the Jersey and Pennsylvania; and this, too, after hearing granted premises, for navigation, fishing or otherwise, counsel upon the question. Their opinion was, that The only objection which could have been opposed to the right to the river Delaware and the islands therein, the exercise of those acts of ownership, under this still remained in the crown. See Chalmer's opinions. grant, was, that the duke had himself no title to the
Notwithstanding this objection to the title of New bay and river Delaware, under the royal grant to him. Jersey, whilst a proprietary government, to any part But the presumption is, nevertheless, irresistible. of the bay and river Delaware, it seems that the pro- that the benefits intended to be bestowed by this prietaries of West Jersey claimed, if not the whole of grant, and which were confirmed by the other acts of the river, a part of it, at least, below low water mark, the provincial government, bofore noticed, were as far back as the year 1683, as appears by a resolu- considered by the inhabitants of the province as betion of the assembly of that province, in that year, ing too valuable not to be enjoyed by them. This "that the proprietary of the province of Pennsylva- use of the bay and rivers amounted to an appropriania should be treiied with, in reference to the rights tion of the water so used. Vat. b. 1. c. 22. s. 266: and privileges of this province, to or in the river De- and this title became, as has before been observed, laware."
indefeasible by the treaty of peace, except as agains: By certain concessions of the proprietarics. free- some other state, having an equally good or a better holders, and inhabitants of west New Jersey, some title. time about the year 1676, they granted that all the in How far this title in New Jersey may be affected habitants of the province should have liberty of fish- by the grants of the duke of York to William Penn, in ing in Delaware river or on the sea coast.
1692, of the tract of country which now forms the În 1693, a law passed in that province, which enact state of Delaware, it would be improper in this case ed that all persons, not residing within that province to decide. But that the use of the bay for navigation or within the province of Pennsylvania, who should and fishing was claimed and enjoyed by the inhabikill or bring on shore any whale, in Delaware bay, or tants of that province, under those grants, is as fairly elsewhere within the boundaries of that gorernment, to be presumed as that it was so claimed and used by should be liable to a certain penalty.
the inhabitants of New Jersey; and we are strongly In the year 1771, another act was passed for im- inclined to think that, if the right of the former of proving the navigation of the Delaware, and, in 1783, these states to the bay of Delaware was founded on another act was passed, which annexed all islands, no other title but that of appropriation, by having used islets and dry land, in the river Delaware, belonging it for purposes of navigation and fishing, the efleet of to the state, as low down as the state of Delaware, to the revolution and of the treaty of peace was to exsuch counties as they lay nearest to. And, in the tend the limits of those states to the middle of the same year, the compact was made between the states bay, from its mouth upwards. But be the title of the of New Jersey and Penysylvania, hy which tlie le- state of Delaware what it may, we are clearly of gislatures of the respective states irere authorized 10 opinion, that, as between the plaintiff, who asserts and pass laws for regulating and guarding the fisheries inhas certainly shown, no condicting title in the state
of Delaware, to the bay, and the state of New Jersey, by his own government, during the late war, and or those acting under the sanction of her laws, the says that efforts were made by us to induce them to court is bound to consider that law as a sufficient jus join our standard), introduces the following “talk” tification of the proceedings under it, provided the as a proof of the policy which we pursued with relocus in quo was within the body of the county of ference to this unfortunate people; and, though it is Cumberland, which is next to be considered.
notorious that the only efforts made by us was to Third. The third general question then is, whether, keep them at peace, it is pleasant to mcet with this admiting the locus in quo to be within the territorial beautiful and appropriate address of president Malimits of New Jersey, it is within the limits of the dison-now published for the first time. county of Cumberland, in which the proceedings "Talk of the president of the United States to the deputies complained of took place.
from sereral tribes who accompanied governor Clark to The boundaries of this county, towards the bay, are Washington--1812. thus discribed in the act which created it-bounded MY RED CHILDREN: You have come through a long by Cape May county to Delaware bay, and then up Del- path to see your father, but it is a straight and a clean cicare bay to lhe place of beginning.” If the opinion of the path, kept open for my red children, who hate crookcourt, upon the last preceding question, as to the con- ed walks- I thank the Great Spirit that he has brought struction of the original grant from Charles II. to the you in health through the long journey; and that he duke of York, be correct, it would seem to follow that gives us a clear sky and bright sun for our meeting. the western boundary of this county extends only to I had heard from gen. Clarke of the good dispositions low-water mark on Delaware bay, the expression of several of the nations on and west of the Missis"to Delaware bay,” implying nothing more than to sippi; and that they shut their ears to the bad birds the east side of that bay, which the law extends to hovering about them for some time past. This made low-water mark. We mcan not, however, to give me wish to see the principal chiefs of those bands. I any decided opinion on this point, because, in the love to shake hands witli hearts in them. first place, if there be any weight in the above sug The red people, who live on the same great island gestion, (and nothing more is intended), the legisla- with the white people of the eighteen fires, are made ture of that state, can at any time, should it be deem- by the Great Spirit out of the same earth, from parts ed necessary, define, with greater precision, the of it, differing in color only. My regard for all my limits of the counties bordering on the bay; and, se- red children has made me desirous that the bloody condly, because we think it unnecessary to decide tomahawk should be buried between the Osages, the that point in the present case, being clearly of opi- Cherokees, and the Choctaws. I wish also that the nion, fourthly, thai the objections to this form of ac- hands of the Shawanese and the Osage should be lion are fatal.
joined in my presence, as a pledge to cherish and It is an action of trespass, brought by the owner of observe the peace made at St. Louis. This was a the Hiram, for illegally seizing, taking and carrying good peace for both. It is a chain that ought to hold away the said vessel. It appears, by the evidence them fast in friendship. Neither blood nor rust that, at the time of the alleged trespass, the vessel should ever be upon it. was in possession of John Keen, in virtue of a hiring I am concerned at the war which has long been of her to him, for a month, by lland, who had pre- kept up by the Sacs and Foxes against the Osages; viously hired her of the plaintiff, and that the time, and that latterly a bloody war is carried on between for which keen had hired her, had not expired when the Osages and loways. I now tell my red children the seizure was made. The question is, can the here present that this is bad for both parties. They plaintiff, under these circumstances, maintain this must put under my feet their evil intentions against action?
each other; and benceforward live in peace and good We hold the law to be clearly settled, that, to ena- will; each hunting on thcir own lands, and working ble a person to maintain trespass or trover for an their own soil. injury done to a personal chattel, the plaintiff must Your father loves justice. Ile extends it to all the have had, at the time the injury was done, either ac- red tribes. When they keep the chain of friendship tual or constructive possession of the thing as well with the eighteen fires bright, he will protect them, as a general or a qualified property therein. The and do them good. If any make the chain bloody, it merely being out of the actual possession, is not suf- must be broken on their heads. The Winebagoes, ficient to defeat the action, provided he has a right and some other tribes between the Mississippi and to demand it, because the general property, prima lake Michigan and the Wabash, lave shut their ears facie, draws to it the possession. But, if the general to my counsels. They have killed men, women and owner part with the possession to another person, children; and have plundered the white people. They under a contract which entitles such person to an in- refuse to give up the murderers, and to return the terest in the thing, though for a limited time, the stolen property. Time enough has been allowed owner cannot be considered as having a constructive them; when they feel the punishment, they must possession during that time, and, consequently, he blame their owr.folly and the bad counsels to which cannot maintain an action of trespass for an injury they have listened. I will not suffer my white childone to it during such possession of the bailee. His dren to be killed without punishing the murderers. only remedy is an action on the case for consequen A father ought to give good advice to his children); tial damages. (See 1 Chit. Plead. 166, 167, 150, and and it is the duty of his children to harken 10 it. The the cases there cited; also, 8 Johns. Rep. 337; i Johns. people composing the eighteen fires are a great peoRep. 9, 535; 11 Johns. Rep. 395.) The Hiram, then, ple. You have travelled through their country. You having been lawfully in possession of Keen, under a see they cover the land, as the stars fill the sky, and contract of hiring for a month, which time had not are as thick as the trees in your forests. Notwithexpired at the time the alleged trespass was commit- standing their great power, the British king has at. ed, the action cannot be supported.
tacked them on the great water beyond which he lives. Let judgment be entered for the defendant. He robbed their ships and carried away the people be
longing to them. Some of them he murdered. ile has Talk to Indians.
an oid grudge against the eighteon fires, because, when
he tried to make them dig and plapi for his people beThe National Journal," in repeiling some slanders on yond the great water, not for themselves, they seni
the Quarlerly Reriew,as to the conduct of the govern-out warriors who beat his warriors; they drove of the ment of the U. States in respect to the Indians in bad chiefs he liad seat among them, and set up gooit which the British writer justifies their enirloymen: chiefs of thinir own. The eighteen fires did when