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were occupied by the colonies being claimed by the Crown of England by right of discovery. A grant from the king could alone confer title to the soil, and was the only source of authority for exercising powers of government over the lands so granted.1 The absolute right of property and dominion was thus held to belong to the European nation by which any particular portion of the country was first discovered, as if it had been found without inhabitants.9 The Indians were regarded as mere temporary occupants, having no title to the soil which they could convey, except to the nation which claimed the territory, or with its express consent.3 Hence, a grant by the Indian tribes neither augmented the title acquired by discovery, nor did it alone possess such validity as would enable the grantee to resist a title to the same lands under a royal grant.4 Where Indian grants were recognized and confirmed by the colonial gov
Mundy, 1 Halst. 1, 82, 83; Bell v. Qough, 23 N. J. L. 024, 707; Johnson v. McIntosh; 8 Wheat. 543; Martin v. Waddell, 10 Peters, 367; Cherokee Nation r. Georgia, 5 Peters, 1; Worcester r. Georgia, 0 Peters, 515; Holden v. Joy, 17 Wall. 211, 243, 244; United States r. Cook, 19 Wall. 591; Jackson v. Porter, 1 Paine, C. C. 457; Mitchell v. United States, 9 Peters, 745; Clark v. Smith, 13 Id. 195; 8 Opin. Atty. Gen. 202, 264; United States v. 43 Gallons of Whiskey, 93 U. S. 188; Beecher v. Weathersby, 95 U. S. 517, 525; De Armes v. New Orleans, 5 La. 132; Penn v. Baltimore, 1 Ves. 445; Commonwealth v. Roxbury, 9 Gray, 451, 478; Jackson r. Ingraham, 4 Johns. 103; Jackson v. Waters, 12 Johns. 365; Jackson v. Hudson, 3 Johns. 375; 1 Kent Com. 258; 3 Id. 377 et seq.; Jackson v. Wood, 7 Johns. 295; Gilbert r. Wood, 7 Johns. 290; Goodell r. Jackson, 20 Johns. 693; Penobscot Tribe v. Veazie, 58 Maine, 402; Veeder v. Guppy, 3 Wis. 502. In England it is held that when English subjects establish themselves in uninhabited or barbarous lands, they continue subject to
the sovereignty of England and to such of its laws as are applicable to their new condition; but that acts of Parliament, passed after the settlement of the new colonics, do not bind them unless they are expressly named. Anon. 2 P. Wms. 75; Blankardo. Galdy, 2 Salk. 411; Campbell v. Hall, 1 Cowper, 204, 208; Attorney General v. Stewart, 2 Mer. 143, 159; Advocate General v. Dossee, 9 Jur. N. S. 877; Dutton v. Howell, Show. Pari. Cas. 31, 32; Pieton's Case, 30 Howell's State Trials, 903; Pitt v. Dacre, 3 Ch. D. 295; Martin v. Waddell, 10 Peters, 367 ; Pollard v. Hagan, 3 How. 212, 229; 1 Black. Com. 107, 108; Johnson v. McIntosh, 8 Wheat. 543, 595.
1 Ibid. 1Ibid.
3 See authorities above, note 3; Holden v. Joy, 17 Wall. 211, 243, 244; Leavenworth Railroad Co. v. United States, 92 U. S. 733; Minter v. Shirley, 45 Miss. 376; Wood v. M. K. & T. R. Co., 11 Kansas, 323; 1 Kent Com. 258; 3 Id. 377 et seq.; Commonwealth v. Roxbury, 9 Gray, 451, 478; Bell v. Gough, 23 N. J. L. 624, 707.
ernments acting under the political powers conferred by the European nations, they were construed according to the laws of such nations. In 1685, the colonial assembly of Connecticut confirmed to proprietors, who had purchased from the Indians, lands which included an arm of the sea, with all islands, ponds, ways, "waters, watercourses, havens, ports, rivers, fishings," etc. This confirmation, though in itself a grant of title, did not convey the soil between high and lowwater mark, the words above quoted being insufficient, by the common law, to convey such soil.1 So, the title of the colonies to the shores and tide waters within their limits did not pass, under the colony patents, to the different towns which had purchased them from the Indians.2 No obstacle was thus presented to the application of the common law in controversies respecting waters either tidal or inland. Nor did the fact that many parts of this country were claimed, and actually settled, by those who were strangers to the common law, prevent that system from becoming generally prevalent. In New York, which Avas settled by the Dutch, with whom the civil law prevailed, the province was claimed by right of discovery, when it passed into the possession of the English, and, being re-established as a British colony, the common law of England was applied in controversies respecting its waters.3 The common law, so far as it is not repugnant to the institutions' and laws of the particular State, has become, either by right of discovery or by statute, the fundamental law throughout this country, except in Louisiana.4
1 East Haven v. Hemingway, 7 which they had not legal capacity to Conn. 186, 200; Middletown v. Sage, sell, and of which the proprietors had 8 Conn. 221; Jackson v. Porter, 1 been in quiet possession for many Paine C. C. 457; Commonwealth v. years."
Roxbury, 9 Gray, 451, 478, 493. In • Church v. Meeker, 34 Conn. 421, the above case of East Haven v. Hem- 428; Seeley v. Brush, 35 Conn. 423. ingway, Hosmer, C. J., while holding 1 Canal Commissioners v. People, that the confirmation was a grant, 5 Johns. 423, 445; Cortelyou v. Van added: "At the same time it must be Brundt, 2 Johns. 357; 1 Story on the admitted that the principal, if not the Constitution, 136; Smith's New Jernole object of the grant, was to con- sey Law, 36, 37.
firm to the proprietors the title to 4 Norris v. Harris, 15 Cal. 226; their lands purchased of the natives, Waters r. Ross, 12 Cal. 535; Van
§ 31. Under all the early governments in this country, whether charter, royal, or proprietary, the power to control and regulate their territorial and local interests was practically co-extensive and the same. No instance appears in which the Crown of England ever claimed, for its own benefit, any exclusive rights in the tide waters of these possessions, or in the soil under them. Although royal grants to individuals, for private purposes, include only what is expressly granted, and pass nothing by implication,1 yet, in the case of a grant by the Crown of extensive foreign domains, where the obvious intent of the grant is not merely to vest the Crown's right of property in the grantees, but also to invest them with civil and political powers, and to establish complete though subordinate sovereignties, a different rule has been held applicable in this country. The grant of King James I., in November, 1620, to the council of Plymouth, upon the basis of which most of the others were framed, expressly named,2 as included in the grant, not only the lands described, but also all havens, ports, rivers, waters, fishings, mines, etc., and all and singular other commodities, jurisdictions, royalties, privileges, franchises, and preeminences, both within the tract of land upon the main, and within the islands and seas adjoining; and, although such words as ports, rivers, waters, or fishings, are insufficient, in the case of a private grant, to convey the soil,3 yet the other words employed, and especially the word "royalties," in connection with the manifest purpose of the grant, were held to convey to the colonial governments
Maren v. Johnson, 15 Cal. 308; Tesche- • See Barker v. Bates, 13 Pick. 255,
macher v, Thompson, 18 Cal. 11; Reed 259.
v. Eldredgc, 27 Cal. 346; Ward v. 3 Wood's Case, 1 Co. 46 b; 16 Vin.
Mulford, 32 Cal. 365; Galveston v. Abr. tit. Prerogative, K. § 27; Chitty
Menard, 23 Texas, 349; Courand v. on the Prerogative, 392; 2 Black.
Vollmer, 31 Texas, 400; Franklin's Com. 18; Yelv. 143 ; Shep. Touch. 97;
Succession, 7 La. Ann. 395, 418; Com. Dig. tit. Grant, E. 5; East
Reynolds v. Swain, 13 La. Rep. 193; Haven v. Hemingway, 7 Conn. 186,
1 Kent Com. 473, note; Pollard v. 200; Middletown v. Gage, 8 Conn.
Hagan, 3 How. 212, 227. 221. The royal grant of the province
1 Royal Fishery of the Banne, Sir of Maine, in 1639, to Sir Ferdinando
John Davies, 149; Somerset v. Fog- Gorges, expressly included the right
well, 5 B. & C. 884; Boston p. Rich- to wreck. See 3 Dane's Abr. 137. ardson, 13 Allen, 146.
the right and jurisdiction of the Crown in the shores of navigable waters, and in the soil under such waters, and to invest them with such powers of legislation and administration as were necessary to advance the prosperity of the colonists. Such was the construction adopted by the Supreme Court of the United States,1 and by the courts of Massachusetts,9 New Jersey,3 and Connecticut.4 It is doubtless consonant to the law of England. Thus, in Doe v. East India Co.,6 before the Privy Council, it appears to have been conceded that the defendants, as representing the Indian government, had a freehold in the bed and shores of the navigable rivers of India. Upon this principle the colony of Massachusetts passed the ordinance of 1647, by which the seashores and flats of the colony, down to low-water mark, not exceeding one hundred rods from high-water mark, were made the property of the littoral proprietors. In Brookhaven v. Strong,6 in New York, a grant of an exclusive right to the soil and the oyster fisheries in an arm of the sea, which was made by the colonial government, and was ratified and confirmed by the colonial assembly, was held to be valid.
§ 32. At the time of the Revolution, when the people became sovereign, the respective States succeeded to the title of the Crown in the tide waters within their territorial limits, and to such rights therein as had been previously granted to the local governments established under the
1 Martin v. Waddell, 16 Peters, 367; 3 Harr. (N. J.) 495; Johnson p. Mcintosh, 8 Wheat. 595; Fairfax v. Hunter, 7 Cranch, 618; Den v. Jersey City, 15 How. 426; Charles River Bridge v. Warren Bridge, 11 Peters, 420, 457; Bennett v. Boggs, Bald. C. C. 60.
•Barker v. Bates, 13 Pick. 255; Commonwealth v. Alger, 7 Cush. 53; Commonwealth v. Roxbury, 9 Gray, 451; Boston v. Richardson, 105 Mass. 351; Storer r. Freeman, 6 Mass. 435; Parker r. Smith, 17 Mass. 413; Lapish v. Bangor Bank, 8 Maine, 85; Clancey v. Houdlette, 39 Maine, 451.
royal sanction.1 Public rights in navigable waters were not affected or impaired by this change of title, and the powers acquired by the States were those which, in England, and in this country previous to the Revolution, could have been exercised by the king alone, or by him in conjunction with Parliament.2 It is apparent that the principles of the English law upon the subject have been much modified in this country.3 While in England there are rights of private property and of jurisdiction in the Crown, the public rights of navigation and fishery, which the Crown cannot impair,