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diction, it would seem to be a con- westward, and we are of opinion, clusive answer to the whole of the that although the rule of the law of argument on this point. But no nations is, that where a nation takes such legislation has taken place, possession of a country, separated and, consequently, the power of by a river from another nation, and it the state governments to pass laws does not appear which had the prior to regulate the fisheries within their possession of the river, they shall respective limits, remains as it stood each extend to the middle of it; yet before the constitution was adopted. that, when the claim to the country
Secondly. The next general is founded, not on discovery, and question to be considered is, whe- occupancy, but on grant, the bounther the boundaries of the state of dary on the river must depend upon New Jersey include the place where the just construction of the grant the Hiram was seized whilst enga- and intention of the parties, to be ged in dredging for oysters. discovered from its face. Taking
The grant from Charles II., to this as the rule, we think that the his brother the duke of York, of the claim of New Jersey, under these territory of which the present state grants, to any part of the bay or of New-Jersey was a part, dated river Delaware, below water mark, 12th March, 1663-4, was of all cannot be maintained. The printhat territory lying between the ciple here suggested is, we conrivers St. Croix, adjoining Novaceive, fully recognized and adopted Scotia, and extending along the sea by the supreme court, in the case coast, southerly, to the east side of of Handly's lessee o. Anthony, ő the Delaware bay, together with all Wheat. Neither do we conceive islands, soils, rivers, harbors, marsh- that the limits of the state can, by es, waters, lakes, fishings, huntings, construction, be enlarged by virtue sportings, and all the royalties, pro- of the grant of all rivers, fishings, fits, commodities, hereditaments and other royalties, which expres. and appurtenances, to the same be. sions ought, we think, to be conlonging and appertaining, with full fined to rivers, fishings and royalties. power to govern the same. within the boundaries of the granted
The grant of the duke of York, premises. This appears to have dated 24th June, 1664, to lord been the opinion of the crown law. Berkley and sir Geo. Carteret, after yers, who were consulted, more reciting the above grant, conveys than a century ago, respecting the to them all that tract of land, lying boundaries of New Jersey and Pennto the westward of Long Island Sylvania ; and this, too, after hear. and Manhatten Island, bounded on ing counsel upon the question. the east, part by the main sea, and Their opinion was, that the right part by Hudson's river, " and hath of the river Delaware and the islands upon the west Delaware bay or therein, still remained in the crown. river, and extended southward," See Chalmer's opinions. &c. " with all rivers, fishings, and Notwithstanding this objection to all other royalties to the said premi- the title of New Jersey, whilst a ses belonging," &c.
proprietary government, to any There is no material difference part of the bay and river Delaware, between these grants, as to the it seems that the proprietaries of boundaries of New Jersey, on the West Jersey claimed, if not the whole of the river, a part of it, at doubt, that the proprietaries of west least, below low water mark, as far New Jersey, from a very early peback as the year 1683, as appears riod, asserted a right to the river by a resolution of the assembly of Delaware, or to some part thereof, that province, in that year, " that below low water mark, and along the proprietary of the province of its whole length : and since the Pennsylvania should be treated with, western boundary of the province, in reference to the rights and pri- under the grant of the duke of vileges of this province, to or in the York, was precisely the same on river Delaware.”
the bay as on the river, it may fairBy certain concessions of the pro- ly be presumed, independent of his prietaries, freeholders and inhabi- grant, to the proprietaries in 1680, tants of west New Jersey, some and the concessions made by them time about the year 1676, they in the year 1676, that this claim granted that all the inhabitants of was extended to the bay for the the province should have liberty of purpose of navigation, fishing and fishing in Delaware river, or on the fowling. sea coast. .
In this state of things the revoluIn 1693, a law passed in that tion was commenced and conductprovince, which enacted that alled to a successful issue, when his persons, not residing in that pro- Britannic majesty, by the treaty of vince or within the province of peace, acknowledged the several Pennsylvania, who should kill or states to be sovereign and indepenbring on shore any whale, in Dela. dent, and relinquished all claims, ware bay, or elsewhere within the not only to the government, but to boundaries of that government, proprietary and territorial right of should be liable to a certain pe- the same. The right of the crown nalty.
to the bay and river Delaware being In the year 1771, another act thus extinguished, it would seem to was passed for improving the navi- follow, that the right, claimed by gation of the Delaware, and, in New Jersey in those waters, was 1783, another act was passed, which thereby, confirmed, unless a better annexed all islands, islets and dry title to the same should be found to land, in the river Delaware, belong. exist in some other state. Whether ing to the state, as low down as the the claim of New Jersey extended state of Delaware, to such counties to the middle of the bay, as we see, as they lay nearest to. And, in the by the compact with Pennsylvania, same year, the compact was made it did to the middle of the river, is between the states of New Jersey a question which we have no and Pennsylvania, by which the le- means of solving. But that the gislatures of the respective states proprietors and inhabitants of west were authorized to pass laws for New Jersey made use of the bay, regulating and guarding the fishe- both for navigation and fishing, ries in the river Delaware, annexed under a claim of title from a period to their respective shores, and pro- nearly coeval with the grants of the viding that each state should exer- province, can hardly admit of a cise a concurrent jurisdiction on doubt. This right, indeed, is exthe said river.
pressly granted by the duke of These acts prove, beyond a York to William Penn and the other proprietaries of west New ed on no other title but that of apJersey, by his grant, bearing date propriation, by having used it for 6th Aug. 1680. It contains a grant, purposes of navigation and fishing, not only of all bays and rivers, to the effect of the revolution and of the granted premises belonging, but the treaty of peace was to extend also the free use of all bays and the limits of those states to the rivers, leading into or lying between middle of the bay, from its mouth the granted premises, for naviga upwards. But be the title of the state tion, fishing or otherwise. The on- of Delaware what it may, we are ly objection which could have been clearly of opinion, that, as between opposed to the exercise of those the plaintiff, who asserts and has acts of ownership, under this grant, certainly shown, no conflicting title was, that the duke had himself no in the state of Delaware, to the title to the bay and river Delaware, bay, and the state of New Jersey, under the royal grant to him. But or those acting under the sanction the presumption is, nevertheless, of her laws, the court is bound to irresistible, that the benefits intend consider that law as a sufficient jus. ed to be bestowed by this grant, tification of the proceedings under and which were confirmed by the it, provided the locus in quo was other acts of the provincial govern- within the body of the county of ment, before noticed, were consi- Cumberland, which is next to be dered by the inhabitants of the pro- considered.. vince as being too valuable not to Third. The third general ques. be enjoyed by them. This use of tion then is, whether, admitting the the bay and rivers amounted to an locus in quo to be within the terriappropriation of the water so used. torial limits of New Jersey, it is Vat. b. 1. c. 22. s. 266 : and this within the limits of the county of title became, as has been before Cumberland, in which the proceed. observed, indefeasible by the treaty ings complained of took place. of peace, except as against some The boundaries of this county, other state, having an equally good towards the bay, are thus descri. or a better title.
bed in the act which created itHow far this title in New Jersey “bounded by Cape May county may be affected by the grants of to Delaware bay, and then up Delathe duke of York to William Penn, ware bay to the place of beginning." in 1682, of the tract of country If the opinion of the court, upon which now forms the state of Dela- the last preceding question, as to ware, it would be improper in this the construction of the original case to decide. But that the use grant from Charles II. to the duke of the bay for navigation and fish- of York, be correct, it would seem ing was claimed and enjoyed by to follow, that the western boundathe inhabitants of that province, ry of this county extends only to under those grants, is as fairly to low-water mark on Delaware bay. be presumed as that it was so the expression “ to Delaware bay," claimed and used by the inhabitants implying nothing more than to the of New Jersey; and we are strong-, east side of that bay, which the ly inclined to think, that if the law extends to low-water mark. right of the former of these states We mean not, however, to give any to the bay of Delaware was found decided opinion on this point, because, in the first place, if there be tual or constructive possession of any weight in the above suggestion, the thing as well as a general or (and nothing more is intended,) the a qualified property therein. The legislature of that state, can, at any merely being out of the actual postime, should it be deemed necessa- session, is not sufficient to defeat ry, define, with greater precision, the action, provided he has a right the limits of the counties bordering to demand it, because the general on the bay; and, secondly, because property, prima facie, draws to it we think it unnecessary to decide the possession. But, if the genethat point in the present case, being ral owner part with the possession clearly of opinion, fourthly, that to another person, under a contract the objections to this form of action which entitles such person to an are fatal.
interest in the thing, though for a It is an action of trespass, limited time, the owner cannot be brought by the owner of the Hiram, considered as having a construcfor illegally seizing, taking and car- tive possession during that time, rying away the said vessel. It ap- and, consequently, he cannot mainpears, by the evidence, that at the tain an action of trespass for an time of the alleged trespass, the injury done to it during such posvessel was in possession of John session of the bailee. His only Keen, in virtue of a hiring of her remedy is an action on the case for to him, for a month, by Hand, who consequential damages. (See 1 had previously hired her of the Chit. Plead. 166, 167, 150, and plaintiff, and that the time, for the cases there cited; also, 8 which Keen had hired her, had not Johns. Rep. 337; 7 Johns. Rep. expired when the seizure was made. 9, 535 ; 11 Johns. Rep. 385.) The The question is, can the plaintiff, Hiram, then, having been lawfully under these circumstances, main. in possession of Keen, under a tain this action ?
contract of biring for a month, We hold the law to be clearly which time had not expired at the settled, that, to enable a person to time the alleged trespass was commaintain trespass or trover for an mitted, the action cannot be supinjury done to a personal chattel, ported. the plaintiff must have had, at the Let judgment be entered for the time the injury was done, either ac- defendant.
CIRCUIT COURT OF THE U. S. OCTOBER SEssions, 1825.
Present—Judges Washington and Peters.
UNITED STATEs vs. JUAN GALBERTO DE ORTEGA. This was a prosecution under the United States, or shall assault, the act of congress, of the 30th strike, wound, imprison, or in any of April, 1790, the twenty-eighth other manner infract the law of section of which, declares, “That nations, by offering violence to the if any person shall violate any safe person of an ambassador or other conduct or passport, duly obtained public minister, such person, so and issued, under the authority of offending, on conviction, shall be imprisoned not exceeding three you no friend to send on such an years, and fined at the discretion errand? You know who I am, and of the court.”
where I live. The defendant still There were two indictments, retaining his hold, Mr. S. again deone charging the defendant with sired him to let him go, threatening an assault and battery upon the to strike him if he did not. The deperson of Don Hilario de Rivas y fendant answered, “ You need not Salmon, charge d'affaires of his strike me, for I shall fight you in catholic majesty, near the govern- another place,” and then inquired ment of the United States, know if he had any arms about him? ing him to be such; the other Mr. S. replied that he had not, for charging him with an infraction of he professed to be a peaceable man. the laws of nations, by committing The defendant observed, that he the said assault and battery. To had none either, but that he could both the indictments the defendant easily procure them if Mr. S. would pleaded “ not guilty :” and both fight, Mr. S. answered that he were tried at the same time. should fight him immediately if he
The facts of the case, as proved did not release him. All remonby Mr. Salmon, (who presented strances proving fruitless, Mr. S. himself to the court as a voluntary thrust the defendant with the point witness,) were as follow : On the of his umbrella, which was renight of the 17th of September turned by a blow with another umlast, whilst Mr. Salmon was re- brella. turning from the circus, he heard The fight continued for some the steps of some person walking time, when Mr. S. having greatly gently behind him, and presently the advantage, having hold of his the defendant accosted him in a cravat, with his back fixed against solitary place, seizing him by the the wall, Mr. Smith came up, and breast of the coat, and saying, in desired them to separate. Mr. S. an angry manner, "Mr. Salmon, agreed to release the defendant, if I am Ortega ; you have insulted he would promise to keep the 'me, and I seek satisfaction.” Mr. peace. This, after some hesitaSalmon replied, “I have never in- tion, was promised, and the desulted you, but you insult me now; fendant was released. But almost please to let me go." "No," re- immediately afterwards, the deplied the defendant, “ I have got fendant again approached Mr. S. you now, and I will not let you go, in a menacing attitude, with one unless you will promise to give me of his arms raised. Mr. Smith imsatisfaction, for you have published mediately interposed, and, after rcmany falsehoods against me.” minding the defendant of his proMr. Salmon replied, that he had mise, told him, that if he was deterpublished nothing against him, but mined to have a fight, he must fight in answer to a very insulting mani. him. This put an end to the affray, festo of his, against all kings, and and the parties separated. especially against his government. Another witness, Mr. Wallace, He further added, is it so long, af- stated, that he passed the parties, ter your arrival, that you seek sa- who were talking in Spanish, with tisfaction for an old offence ? and is apparent ill blood, and that he did this the way you demand it? Have not observe the defendant to have