v\ . , , . V- .'^*^ , oN S, V \ ■ - V \ o5 -n*- ^°^ A f^ of* ^ . --Z-tA.' ^^ '^ O y NM~S-' « or* Af t ^-2 6* ■A >' . >^ - ' ^ . . A-^ ^- .\,^f'^^r. ^^.. ^,, \ v-^' .^ >1^ ' "^. 'bo V 1. ' .A ^-^''' y^^"- "" W'. -^ -^^ ,<>^'■ •^ .•V .^yi^^'-/^. REPORT or THE COMMISSIONERS ON THE CONTROVEaSY Vv WITH YHS BESFECTDTG TBK EASTERN BOUNDARY CF THE October 30, 1807. RE-PRrNTED BV WILLIAM L. PRALL. •1 r-J^ * REPORT OF THE COMMISSIONERS, &c. To the Honorable the Legidatiire of the state cf JSTew- Jersey^ The Commissioners appointed on the part of New-Jersey, to settle, with commissioners appointed on the part of New-York, the jurisdictional houndary line between the two states, beg leave tQ REPORT, That the said commissioners, under their respective authorities^ ■net at Newark, in New-Jersey, for the accomplishment of the end -.or which they were appointed, and that, after long discussions, all ittcmpts to procure an amicable adjustment proved entirely abor- tive. Your commissioners hope that the honorable the legislature will lot disapprove of the breaking up of further conference, after it »ad fully appeared that the commissioners on the part of New- k'oi k had resolved not to depart from their claim over the wholA vaters lying between ihe respective states, includijis; shores^ roads» ind harbors within the natural territorial limits of JSTew Jersey. Your commissioners further beg leave to state, that they couldi lot assent to the conclusion di-awn from the fact asserted by New- ifork, that possession, both before and since the revolution, was la lOTifoi mity to their present claim — 1st. Because notorious acts of possessions existed on the part of ^ew-Jcrsey, and were evident to the sejises of every man along he whole of the shores, opposite to New York and the adjoining vaters, that were fully equivalent to those asserted on the founda- ion of the senses of the commissioners of New-York.— And £d. Because the right of jurisdiction over these shores and wa- ers, and which is the subject of the present controversy, was un- luestionably a jus regiiiiUf or royal prerogative right, actually lossessed by, and vested in the crown of Great- Britain, and exclu- ively exercised by its board of trade and navigation, without the ntervention of either of the colonial governments, at the time of lie declaration of independence; and consequently, that this right ad never been possessed or exercised by the government of the oluny ot New-Y'ork, at that time; and, in respect to th© time since lat period, no acts of jurisdiction have appeared on the part of Jew-York, or of acquiescence on the j^art «f JNew-Jersey, which in tbe opinion of your commissioners, could give to N^w-York any claim (Vom possemon (witiiout preten(e of ^^}^y (haiiei- or grant) to a preferable right of jurisdiction over tl.c shores and waters in question, after that of the erown of Great-Britain liad ceased, when 8tich jurisdiction naturally must belong to the sovereignt>' of the adjoining country. Neither could your commissioncre perceive, from the arj^uments adduced on the p.ut of Ne\\-York, or from thoir own rrfiertions, liow they coti!d justify themselves in compromitting the essential interests of the state, by admitting — 1st. That New-Jeraey, when she acquired her independence, did not acquire the rights of employing commerce from, and creating ft defence on her own shores ; seeing that such rights are necessary for revenue and security, and are incident to freedom and sove» reignty, and that without them these justly valued attributes could not long be maintained, should these United States, now happily connected in a federal bond, ever become unconnected and conflict- Ing powers. "sd. By admitting that the grants from the duke of York to lord Berkeley and sir George Carieret, and their successors, for tho colony of New-Jersey, although not from the Mngi, but from a stife- jed, were to be construed, not acording to the known genera! rulej of the common law, which would carry the grantees to the middiej of the river cr channel, agreeably to the express intent of the griuitor, but according to an exception to the general rule, which has been called the prerogative rnkt (and which applies only to grants made by a king^ an;ii( d of land, bounded on the south by a river, eornmoniy called tlie liari- taii's river, on the east by the sea, which parts Staten-Islirnd and the main, and to run northward up after Cull bay, till you come to the first river, which sets westward out of the said bay, and to 2*un west in;o the country, twice the lengtlj of the breadth thereof, from the noith to the south of the aforementioned bounds.** I'he tvater^ parting Sluten-I-iland and the maiti, in the craut ilenominated sea, had, in the Indian deed, procured by the graMt<'e8, in consequence of a pi*evious license from NicolJs, and on whicli the errant was founded, been denominated a river. This gi-ant, as it regards a laige portioti of the land granted by it, has been usually distinguished as the Eli%aheih Town grant t and the claim- ant« under it as the Elizabeth- Town people. The proprietors^ as soon as this grant came to their knowledge, objected to it, that tJie duke, having alieady sold aned ; but, as early as tlic yeai- 1700. the assembly of New York, in an address to tlie ,a;<)vern«>r. lord Bellamont, mentions, "that differences have- arisen between the county of Orange, in this province, and the pr .virice of East New-Jersey, and they theiefore ptay him to take into bis co»it«kderation the settling the bounds between tlie two pro- vi'ices." It was at last, in consequence of mutual acts by the re- ap* ctive legislatures, submitted to consmissioners to be appointed b} the crown. — "The ajtpointment took place accordingly, and the commissioners, having assenybled and heard the parties, they, on the rth October, 1769. deciced, that the boundary or partition line between the colonies of New York and New Jersey should be a direct line from the fork or branch formed by the junction of the strejim o) waters called the Mahackamack with the river called the Dilawaie or Fishkiil, in the latitude of forty-one d« grees, twenty -one minutes, and thirty-sevejj seconds, as found by the sur- veyors appointed by the said commissioners, to a rock on the west side of Hudson's river, marked by the said surveyors, in the lati- tude of forty-one degrees, being seventy-nine c^iains and twcnty- seveii links to the southward, on a meridian from Sheyden's house, formetly Corbctt's." — Both parties being dissatisfied with the de- cree, as it related to the point or station on the Delaware, appeal- ed tf> the king in council, pursuant to a right reserved in the acts of submission; but in the course of two yeai's thereafter they con- cluded to reiiiKjuisb their appeals, and by like mutual acts to "adopt and confirm the line so decreed by the commissioners, and drclaiing. that it was and should be the boundary or partition Jiiio beiween the two colonies, and provid ng for the ajipointment of cojiimissioners on the part of each to join in ascertaining and marking it so that it might be suiiiciently known and distinguish ed and the comiiiissi«»nei's were directed and required to mark the before meutioned lix k, on the west side ol Hudson's river, with a strai-hi line throughout its surface, passing through the place marked by the sur\eyor8 with the follovvitig words and figuies, to tvil : ' latitude 41 degrees north,* and on the south side thereof the •words .yexv- Jersey, and on the north side thereof the words JVeic- Fork, and to maik every tree that might stand in the said line with bve notches and a blaze on the north, west, and soutli-east sides thereof, and to put up stone monuments at one mile distance from each other, along the said line, and to number the said monu- ments with tlie number of miles the same should Ije from the before mefitioned rock, on the west side of Hudson's river, and mark the ■Words * JVew Jersey* on the south side, and the words 'JScw-York* on the north side of eveiy of the said monuments." On the 20th April, iVgs, the common council of New-York passed the I (Mowing ordinance or by-law and order: — «» It beinij represented to the board, that certain persons had set 11 up fuyck fences in the river, below low-water mark, on the south :ii(le of Faulus Ilook, on the Jersey shore, to the olistrucfion of drawing seines for the takinj^' of fi^h ; whereupon the following ordinance was passed by the board : — *' A law to prevent the setrina^ of fences or other obstrurtinns in the rivers within the limits and jurisdiction of the city of New- York. ** Be it ordained by the mayor, aldermen, and commonalty of the city of New-York, in common council convened, and it is here- by ordained by the authority of the same, that no person shall set or place any fence or stake, or any (jther tiling wliatsoever, in ai»y parts of the rivers or bays within the limits atui jurisdiction of the said city, by which the navigation of the said "ivers oi- bays, or the casting or drawing of seines or nets for the taking of fish, may l)c interrupted or obstructed ; and if any |)erson shall or do set or place any fence or stake, or any other thing whatsoever, in any part of the said rivers oi* hays, contrary to this law, surh person shall, on conviction, forfeit and pay, as a fine for each offence, the sum of eight pounds. " And further, that it shall be lawful for any person to take up and remove any such fence or stake, or other thing, which may at any time be found set or placed contrary to this law. as aforesaid. *• Ordered, that William Sloo, who is employed by this board to take fisli for the use of the Aims-House and Bridewell, do rause to be taken up and removed all such fences or stakes, or otiier things, as may or shall be set in the river in the manner aforesaid, and which tnay or shall obstruct or interrupt him in casting or draw- ing his seine as aforesaid." We have been informed, so as to be fully satisfied of the fact, that the fences and stakes were instantaneously removed by the persons by whom they were placed, and who, at the same time, disavowed any intention to obstruct the fishery. We are, with due respect, your obedient servants, EZRA L'HOMMEDIEU, SAxMUEL JONES, EGBERT BENSON, JOSEPH C. YATI':S. i'o Aauon Ogdek, William S. Pennington, James Parker, Lewis Condict, and ALKXANDiiR C. M*Whorter, esquires, commissioners, &c. September 28, 1807. u No. IL Observations upon the question, whether by the grant of th© duke of York, of the 24th June, 1664, to Berkeley and Carteret, the right of the grantees was limited to high-water mark on the Hudson river, or extended to the centre of that river, usually term- ed the j^/imi aquce. — Charles the second, by his deed, dated the 12th March, 1663-4, granted to the duke of York the Hudson ri- ver in terms, by these words, ** together, also, with the said river called Hudson*s river.'* — The duke afterwards, by his deed of re- lease, dated 24th June, 1664. granted to Berkeley and Carteret *'all that tract of land adjacent to New-England, and lyng and being to the westward of Lojig Island and Manhattan's Island, and bounded on the east part by the main sea, and part by Hud- son's river, and i>ath upon the west Delaware bay or river;" "and also hII rivers, mines, minerals, woods, fishings, hawking, hunt- ing, and fowling, and all other royalties, profit.'., commodities, and hereditaments whatsoever, to the said lands and j}i'eniises belong- ing or in any wise appertaining, with their and every of their ap- purtenances, in as full and ample a manner as the same is graiited to the said duke of York.'* — 'be idea, that the right of the duke's grantees is limited to high-water mark upon the Hudson, arises from considering the river as a public one, in which the tide ebbs and flows; and of course, at the time of the duke's giant, tiie soil and the water over it below high-water mark, at the common law, belonjred to the king, and has not, at any time subsequent, j)assed out of him to an^ individual, and, of course, the state or |)ublic body that acquired the king's right became entitled t(! the whole of this river: or else, that the river passed to the duke by the king's grant, but did not pass by the duke's grant to Berkeley and Carteret, it not being granted to them in term"-; — and was carried, of course, by him to the crown, upon his acquiring it. — If the king ]iad power to grant the river, it is presumed no person will doubt but that it passed by the gi-ant to the duke. That he had such power at the common law, satisfactorily appears from Mr. Har- grave's Law Tracts, Id, 17. The Hudson then ceased to be a royal j'iver on the 12th March, 1764, and became the private property of a subject. By this transition, it is supposed it became subject to the law that regulates inland or private rivers, and lost the prerogatives which regulated the right to it when it was the pro- perty of the ciow n. By the feudal law* al! navigable rivers were computed among tlie regalia. From this source, and from cei-tain j)oIitical conside- lations, the same princijsle passed into the common law, and it Iicing once established, that a navigable river belonged »o the king, all his grants respecting such river were subject, ot course, to tlie roustruction peculiar to royal grants. If, therefoie, the kingovvnt * 1 Blacitstone's Commentaries 274, — 2 Ibid. 262. IS «d the soil adjacent to a navigable river, and .^ranted it to a sub- ject, biii(iin,g liiii) upon the river, the graiit«'o \\. 5t;.— Prin. Lav, 85", ■j Hargrave's Law Tracts, 85. 14 Every navigable river, thus naadc private by the grant of tfie king, like the river Severn, is still subject, as is said ol" that river, to two distinct rights.* — 1st. The right of government over it, which the suprenje power of the nation necessarily retains, in re- ference to the safety of the nation, and to the customs. — 2d. 'I'he jus publicum^ as it is termed by lord Hale, or the public interest, that the people have of passage and re-passage with their goods by water: for, as that great judge says, speaking of a navig:ible river granted to a subject, " the people must not be obstructed by Buisatices, or impeached by exactions." — '* For the jus privdijim of the owner or proprietor is charged with, and subjected to ti-at jus publicum which belongs to tix" king's subjects, as the soil of an highway is, which though, in jjoint of property, it maj be a j)ii- vate man's freehold, yet it is charged with a public interest of tlie people, which may not be prejudiced or ilanmified." It may not be amiss to remark further, that if Judge Tucker's opinion, as expressed in his Blackstone,f be tj'ue, " that all pre- rogative rights in this country ceased at the revolution,'' it seems necessarily to follow, that the law applicable to the rights of pri- vate rivers, became common to public or navigable waters also,t and that peculiar right, by prerogative inherent in the crown, which occasioned the distinction in law in respect to these two kinds of rivers being extinguished, no distinction in the law, as to such descrijjtion of waters, remained. It is presumed, therefore, at this day, that the rights of individuals, as relative to public and private rivers, are precisely tlie same ; all, however, subject to the two description of rights before particularized, vix. the superin- tending right of the government, for the purposes of public safety and revenue, and the jus puhlicum. This statement and consideration of the law accords witli the practice and usage, and witli the common understanding, it is be- lieved, of the people of the United States.^ It was, no doubt, under this view of the subject, that the enlightened commentator of the laws of Connecticut, lays down the law to be — that *♦ all rivers that are na^ igable, all navigable arms of t!ie sea, and the ocean itself, on our coast, may, in a certain sense, be consideied as com- mon ; for all citizens have a common right to their navigation, but all adjoining proprietors on navigable rivers and tlie ocean have a right to the soil covered with watej*, as far as they can occupy it, that is to the channel, and have the exclusive privilege of wharfing 'and erecting piers on the fiont of their lands. Any person, there- fore, has a right to sail through the water that covers the land of another, without being liable for a tres])afis, in the same manner as one may pass through the air that is above the land of another, but no man has a riglit to do any act in the navigable waters iu front of another's land wliich can affect the soil, as wharfing or erecting piers, for in this there is an exclusive property, thouglt * Harg. Law Tracts, 3C. + Page 237. .> 2 Black. Cora. 262. § Swift 341. 15 there is not in the water; nor may adjoining proprietors erect wharves, bridges, or dams across navigable rivers, so as to ob- struct their na\ia;atioii." It is prrsdiued Mr. Swift meant to be understood, that such was the understandin,a^ of the roniinoii law in Connecticut, and it is be- lieved that such is necessarily the understanding of the common law in every state in the Union since the revolution. The result of tlie whole of this doctrine, then is, that, upon the strictest principles of the common law, the grant of the duke to Berkeley and Carteret, binding them on the east by the Hudson, cariied their right of soil to ihc Jilum aqncB of that river: that no restriction in that grant was intended by the gi-antor, every one who reads it will readily admit. It conveys, in terms, all the land lying to tlie westward of Manhattan Isiainl. If an adherence to express terms of grant is to be so much attended to, as is contended, a more plausible argument arises from considering the land under tiie Hudson as expressly included in these words, and carrying the right of Berkeley and Carteret to the eastern margin of the river, than limiting them to the western: and when it is observed that the grant contains ** all rivers," it is presumed that, instead of any restriction of the property, that was the subject of the grant being intended. The intent was, that it should embrace all property that by the most liberal construction of the law could be brought within it; there being, then, no intent on the part of the grantor to limit the grant within the extent the construction of law would otherwise give it. If the statement of the law hei-ein contained be correct, the conclusion on the question is inevitable. That the grant to Berkeley and Carteret, at the time it was made, cai-ried their boundary on the east to the filum aqucB of tlie Hudson I'iver. "We arc, gentlemen, respectfully yours, AARON OGDEN, ALEXANDER C. M'WHORTER, WILLIAM S. PENNINGTON, JAMES PARKER, LENMS CONDI CT. To Ezra L*Hommedieu, Egbert Benson, Samuel Jones, Jo SEPH C. Yates, commissioners. September 29, 1807. 1^ No. III. Gentlemen-, Before a verbal conference, we beg leave further to submit for your consideration — 1st. Certain extracts and an affidavit, marked A, B, C, D, E. 2d. That a port has been established at Perth-Amboy ever since the settlement of New Jersey ; and that the inhabitants of New- Jersey have been always in the constant practice of buildin,^ wharves, erecting piers, establishing ferries, and taking fish and oysters in the waters adjoining, without any material interruption or question till of very late years. 3d. A clause in Smith's History of New-Jersey, describing Manhattan's Island as in Hudson's river. 4th. The duke of York's grant to Berkeley and Carterel, of New- Jersey, in Ju)ic, 1664, binds the territory therein conveyed, ** on the east, part by the main sea, and part by Hudson's river," and hath upon the west Delaware bay or river. 5th. Whether to take Staten-lsland out of the diike's grant, it must nol be shewn that it lies east of the main sea ? 6th. AVhctlier this can be shewn in any other way than by prov- ing that the Sound, which separates it from the continent, and makes it an island, is the main sea ? 7th. Whether the word maiiit as connected with sea. must not be presumed, in legal construction, to have been introduced into the gi'ant for some purpose, and whether any purpose can be ima- gined but the obvious one of giving a definite meaning to the word sea; and to do away all unceitainty in the eastern houndai-y which mislit arise from confounding sounds, straits, or arms of the sea, with the sea itself? 8tl). Whether the term main sea has not a precise legal signifi- cation, which corresponds with the vulgar or common significa- tion of it, and synonymous with ocean; and whether this be not chief justice Hale's idea, in his description of it, when he says — ** The part of tlie sea which lies not within the body of a country, is called the main sea or ocean." 9th. The duke, by his subsequent confirmatory grants of East New- Jersey, of 1680 and 1682, declares the eastern boundary to extend "eastward and noithward along the sea coasts, and the said river, called Hudson's river," &c. — Whether the salt mea- dows, which chiefly constitute the western margin of the Sound, and which is thirty miles from the ocean, can be considered the sea coast which is called for by the grant ; and more especially when the confirmatory grants add, " and all and every isle, islands," &r. could the duke, or any other person, conceive that the legal tilie to Staten-IsSand still remained in him? 10th. Whether the grants of the duke are to he circumscribed within the littus, there could have been any islands meant to be conveyed thereby ? 17 11th. Whetlier the duke must not be presumed to have granted under legai advisemmt ? And whether, according to the most ap- proved rules of construction, his words ought not to be taken in the .«tronjrest and largest sense against him, so as not only to im- port as mucli as they do in common use, but also to include that signification which is known and received among lawyers? See Puffendort', lib. v. ch. 12, sec. 13. — And whether the words maiib settj under the above idea, do not mean more than the word sea, mentioned in the grant '>f Nicolls to the Elizabeth-Town people, as lying between Staten-Island and the mainland? 12tli. riut the proprietors of b.ast New-Jeisey had great con- troversy with their first settlers, and on that account could have had no wish to have the weight of the crown thrown into the scale against them, by having a controversy with the royal governor respecting Staten Island ; especially with the arbitrary and tyran- nical governor Andross, who shewed, at the same time, his power and his want of justice, by actually imprisoning governor Carteret, of New- Jersey, for the bare assertion of his lavvful authnrity in parts of New-Jersey not in controversy. — I'he above is submitted as a reason why the proprietors of New-Jersey did not assert their jurisdiction over Staten-Island further than is referred to in the extracts submitted. 13th. Ihat an Indian title has never been considered, in JV'ew- Jersey, any objection against one regularly deduced from the crown. Besides, the purchase of governor Lovelace from the Indians, for the duke, was in 1670, and anterior to bis several grants of 1674, lo80, and 1682, by which all the rights he had at those times must have severally passed. 14th. That if a giant be restricted by actual length of chain or a natural landmark on the margin of a river, nothing can be pre- sumed to have been conveyed further; and, as far as we have had opj)ortunity to inspect the several grants and patents which have been shewn to us, they all appear to be capable of being reconciled on tliis principle, to the common law construction of deeds that we have heretofore submitted; except, perhaps, in the grants to some towns, which seem to be grants of jurisdiction, as to corpo- rations, over lands which had been previously, or might be there- after purchased by the settlers. 15th. That the commissioners who determined the northern boundary of New-Jersey, were excluded from settling the eastern boundary : henec it was that the commissioners marked the rock on the west side of Hudson's river with a straight line throughout the surface of the roek, passing through the place marked on the rock by the surveyors, with latitude 41 degrees north ; and on the south side of the rock the words, Nesv-Jersey; and on the north side with the words, New-York : and hence it is, also, that they did not mark the east sid.^ uf the said rock with the words. New* York, if they had decided that to be the easteru boundary, G 18 16th. Forthfsp o?)qprvatior)s on the ronstrwrtion of the several grnnt^ fioii! the (!ukp. iii(J«'|)Chdont of the coimnon law coiistruction!] Bieretofore sub nittpil — whir!) p..|»er is mark*^d No. 2 We ai-e, with due respect, yoin* obedient servants, AARON OGDEN, WILLIAM « I'ENNINGTOI^r, JAMES PARKER, LE IS ' ONr>lCT, ALEXANUEll C. M*MHORTER. To KZRA L'HoMMEDIEU, SamUEL JoNES, EgBEUT B£NSO^, Jc» SEPH (', Vates, esquires, €0111 Qiissioners, &c. September 30, Iftor. No. IV. GeMTLEMEWj h. an^>.ver to your ohservation« on the question, "Whether fey the tfia^tt ot the duke fit York, of the 24(h Jun*-, 1664, to Berkeley aiid Carteret, the right of the grantees was limited to hijuh-water mark on the Hudson river, or extended to the centre of that river, lisual'y termed the//?<»i aqua.** It is requisite for us to attend to oi'e ptiM(i|>li, stat'd Uy \ou, in its applirattoit to the grant from the king to tlie duke, and the grants from the r^uke, namely : that at tie common law, when " a navigihie river becomes vested in a subject, it ipso facto becomes a private river, and al' the law regu- lating tiie ri.nlits to private rivers, neressari'y attaches to it."— . Although, as will be perceived, we forb«ar from the examination of this principle, sti^l to gu.'id against presumptions from ou: si- lence, we think proper to declaie, ihar we do not admit, because we do not disrern, the law to be as we c\>nceive jou advance it; that when the soil adjacent ti a navig;ible river on both side'^ of it, together with the nier itseil, becomes >ested in a subject, and such subject ntakes a gr; nt of a parrel of the adjacent soil, on nn© side of tiie river, boutiding the grantees u|,on the river generally W ithout restriction, tiiat the right of the grantor to the river, com- prehending the water, and the land covered with it, and the right of juii dictioii, (if he shall also happen to hn\e such right) to ex- tenil heiw« 'Ml certain lines li oni whne it is SO houud to the riv®r» OQ tiio cUamiei^ will yAna to the giAuteOo 19 9upposin,e:, however, that when the rase was a res inUgra^ or allow iii,q a rouveiiiiMit time to Berkeley anfl Caitei-et, aftei di© gratit to them, to inform themselves of tlieir li^ejiits, it mit^ht tliea have been made a question, as to the rules by wiiirh tlie j^i atifs of the duke were to be construed ; we say, that these ha vine: beei a cotemporaneous ex,»ositio»i, and a usa.^e or practice in confo* 'nity with it, for a period little short of a century and a half, such quesi- tion must now be precluded. The grant fiom the king to the duke, besides passing an estate Jin the territory, furtlur grants certain rights of jurisdictioi- or governtuent, and which, as to be discriminated or ab tracted IVoro his estate or interest in the tenitory, crunpredending the rivers within it, vve shall denominate his right of jt4n'sd/c/io« ; and al- though tl»c duke, as b<'tween him and the king, was certainly to be considered as a subject; yet in consequence of his right of ju- risdiction, Itis grants were to receive thi like construrti<»ii as if Ihey had been immediately from the sovereign, witliout the iMtervcmug grants to him; and in that sense, and in reference ta that construc- tion of his grants, he wasv as between him and his grantees, to be considered as sovereign, and so the law has always been leceived in New-York; and accordingly every grantee has been deelared to have sued out his grant at his peril ; and as a consequence, if he Received the duke in his suggestions for it, the grant was viiid« And further, the grants of the corporation of New York, for th© land between higli and low-water mark, mentioned in the statement we have delivered to you; and the grants which are still constantly made by the commissioners of the land office, undei- the authority of the state, for the soil below h gh-water mark, where it had not, prior to the American revolution, been expressly granted, either by the duke, before or after his accession, or by his successors to the erown, after his abdication, all rest on the ground, that wliere the gj-ant for the adjacent land was bounded generally by the river nothing passed below high-water mark; or, i»i fine, that tl»e js:rants by the duke, as it regarded the rules by which they were to he cortstrued, were to be deemed royal grants. Whether the law of New Jersey has been held, that where the proprietors, prior to the mode, afterwards observe«l, of appropri- ating lands by warrants from council of proprietors to the surveyor- general, made a grant of land adjacent to a navigable rivej*, so wi'hin the fauces terrceuf the territory granted to them, as unques- tionably to pass with it, and binding the land gen' rally on the river ; the grantee, as between him and the proprietors, was in virtue of the grant for the land, also entitled to the river as far as the channel, we are not informed : but supposing the law so to have been held, and consequently that, as slated by us, it is tu be d«eme(l the mere lex loei of New-Vork, and, as such, not afferting the rights of New-Jersey, still we trust you will be sensihh , that it having now become, as it were, a fundamental in «>ur state, it wonM he hig'iiy unadxisable in us to depart from it; noi ohly so, hut we have a perfectly satisfactory convicttou, there was sufiicieut war- rant, and founded in the law of England, as to be applied to the case or colony slate, to assume and adopt it in the first instance, and that it has been wise to persist in it. We remain, with due respect, your most obedient servants, EZRA L'HOMMEDIEU, SAMUEL JONES. EGBERT BENSON, JOSEPH C. YAT. S. To Aaron Ogden, Alexander C. M'Whorter, William S. Pennington, Lewis Condict, and James Parker, esquires^ comnjissioiiers, &c. September SO, 180r. No. V. Gentlemen, \y e have hitherto considered this question in the light of a grani from one subjort to another, of laud lyinc: '•' naviji;able waters.-— Su|(j)osing we a«'e wioiig in the conclusion which we ha\e drawa from this view of the subjert, yet the real situation in which we stand, presents to the mind a difftrent view of the question. The duke of York received from his brother, Charles the second, a grant of a large tract of land in America, at thai time little bet- ter than a vvilderness, for the purpose of settlement and improve- ment, with ample powers of government. The duke, finding this territory too large for one colonial government, before the country was even taken possession of in his name, grunted a large district of this country, of near two hundred miles extent, separated from the rest, on the eastern boundary, by large navigable waters, with like powers of government, to two of his friends, at that time high in the confidence of the king. This grant being made for the sole purpose of enabling the grantees to plant a colony, and improve the country; thereby to benefit, extend, and protect the empire. We apprehend that this grant, from the general principles of law arising therefrom, witlmut any thing more, being the grant of an independent colony, carries witli it a right to the use of the sea and navigable waters adjoining the same. Lest it should be said, that we take for granted what is yet to be proved, we will, in the first place, shew upon what ground we say, that the grant carried with it the powers of government. The state of New-York, we apprehend, will not deny that the powers of government were granted to, and vested in the duke of York, throughout the whole territory conveyed to him. In his grant to Carteret and Berkeley^ ^1 the territory is conveyed to them in as fall and ample a manner as the same is gr:ujted to him; on takinn; possession of whirli, the grantees assumed the powers of {government, under the immediate ausjiices of the duke and the crown ; and, in sixteen hui'died and eij^hty-two, after a partition had been made between East nnd West Jersey proprietors, the duke, in order to confirm the title of the East Jersey proprietors, made a new larrant, in which he, in express terms, conveys an authority to tlie proprietors, *' to exer- cise ail necessary government there, \>ith the same powers, autho- rities, jurisdiction, government, and other matters ano things,*' which he himself derived from the grant to him. Sliould it be said, that a grant of the powers of government from the crown to a sub- ject, IS n«»t alienable, yef we apprehend that the assent of the crown would cute that defect. That this assent was given, aj)pears by a proclamation of Charles the second, dated the 13th day of June, sixteoii hundred and seventy-four, wherein he s ys, that •* Wliereas our right trusty and well beloved councell(»r, sir George Caiteret, by grant derived under us, is seized of the province of New-Jersey, in America.^nd of the jurisdiction theret,f, as proprietor of the same, we do strictly charge and command all persons inhabiting in such province forthwith to yield obedience to the laws and go- Tcrnment which arc, or shall be there established by the said sir George Carteret." A similar recognizance of the right of government, is contained in his majesty's letter to the deputy governor of New Jersey, dated the ninth fits, am! rommofVities, and liere-^ ditamerits whatsoever, t.» tii«^ sau! Ia;»d a.-d piemi^fs i>eloii;,:i.'!„ or in Hty wise appprtaininj;, with the i- and fxeiy of tht-ir ajipu 'e- ratires, in as full and ample a maiinei- as the same was ir'<^«»'<'' to the said duke of York." Can it be said, witli le.^al pro|)nety, that the froe U'-y, and anionsr the regalia of the rrov n expressly .granted? The settienient of New-Jer'.ey m ;>s f(;si»'. ed -nd cncoura,ged by the duke of York and the rrowi-,, f«>r the extens««»n^, protection, and benefit oC the empire. Can it rea'-onahl} be vupi posed, that it was intended to be.ffuile the first settlers there, ;<'!d then shut ihem ont from the navigable waters adjoining: tiw^r shores; that it thej took an oyster in front of their land-, ti-y were made liable to be dragged before the tribunal of a neigi!l<<)r- ing colonj as trespassers? We think this cirrunistance, alone, suf- firient to shew that it couW not be the understanding of the parties at the time of the contract. Bnt what |,uts this question beyond all doubt, is the words in the confirmatory grant by the cl«jke of York to the East Jersey proprietors, in sixteen hundred and eighty-two, before jnentioned ; this being made to explain former grants, and confirm the tit'e, hath the following additional clause :— ♦* As also the free use of all bays, rivers, and waters leading into, or lying between the said premises, or anj of them, in the said pa- 1 of East Jersey, for navigation, free trade, fishing, or otherwise." Here is a complete recognition of tiie right of tiie New-Jersey proprietors to the free use of the waters leading into any part of the colony, for fishing, trade, &c. In con'^equence of this grant, thus made and explained, the lords proprietors, grantees under the duke, acting under his auspices, protected, countenanced, and encouraged by the ci'ovi'n, held out to the adventurers into the colony, in a sf't of articles of agreement made witli them, in the nature of an original constitution of colonial government, called the grants and conces- sions of the lords proprietor s, and dated sixteen hundred and sixty- four, among other things, '* th »t the assembly should have power to create and appoint such and so many ports, harbors, creeks, and other places, for tlje convenient loading and unloading of goods and merchandise, ships, boats, and otiier vessels, as shall be expe- dient, witli such jurisdiction, privileges, and franchises, to such ports, &r,, belonging, as they shall judge most conducive tu the general good of the said plantation or province." It was also agreed *«that the Inhabitvintsof thesaid province have free passage through or by any seas, bounds, creeks, rivers, or rivulets. &c., in tlie said province, through or by which they must necessai'ily pass, to come from the main ocean to any part of the said province ;^* and to in- duce adventur<'rs, the lords [)roprietors published, in England, an account of the situation of the colony, shewing its advantages ; and among other things say, ** that for navigation, it hath these dvan- tages, not only being situated along tiie navigable parts of the Hud- son river, but lies fifty miles oa the niaiu sea/' 6cc. j aud again. 23 <*it ^pins: considerably peopled and sifuafe on the coasts, "with cnti\eiiieiit liarbni's, pioper for such as iii(!iiicto fishery, the whole coast and every harbiM*s mouth belli!;; fit for it." We are aware that the victs of the buds proprietors, and the cn- coura^^emeot Ijeld out bv them to the fiist settieis, are in)t lecjally binding on any otheis than themsehes and representatives ; but we appre!/en(l that all this h^\y.^ done under the eye of the duke, and within the hearinj; of the kin.s;, by tiie friends and favorites of each, is strong exidence of tlie nnriei'standing of tlie parties at the time of the contract; a«id we apprehend that cotemporaneous exposi- tions are weishty in Ihw. On this head we will further observe, that at the time that the propi'oprietors were about to surrender to the crown, in the reiun of king William, tiiey stipulated, among other things, that they should be entitled to wrecks and royal fish that should be forfeited, found, or taken within East Jersey, or by the inhabitants thereof within the Neas adjacent, to remain to the proprietors, with all other privileges and adviintages, as amply as in tiie grant and confirmation to them, of the fouiteenth of March, sixi^en hundred and elglity-twii, (that is, the confirmatory grant of the duke of York, before mentioned) to which the lords commis' sinners of trade and plantations made answer, "that the right ac- cruing to the piM'prietors Irom the seas adjacent cannot be well cii cumscribed ; and tiiat the grant of sixteen hundred and eighty- two, ought to be well considered, and such particulars therein as are proper, may be allowed of;" that is, as we appreliend, such things as did not concern the right- of govcinment, which were about to be surrendered. All this added to the reasonableness and propriety of the thing, must, we think, force irresistibly on the mind a conviction, that the king, the duke of York, and all parties concerned in the transaction, understood that the inhabitants of New Jersey, as a separate independent colony, was to have the free use of the Hudson river and all navigable waters washing their shores, with convenient access to the sea, comprehending in which, the right of erecting and establishing docks, wharves, piers, and p<»rts, any where on or adjacent to their own sliores. When we speak of a separate independent colony, we would be under- stood to mean, separate and independent of any otiier colony, but not of tlie crown. This, tlierefore, being the intenfion of the grant, the nature of the transaction, and understanding of all parties con- cerned in interest, and, as we apprehend, according to the general principles of law arising on the subject, the practice hath been correspondent thereto ever since. For, we think, xNe may with perfect correctness state, that as far back as the memoiy of man extends, or any other evidence can be adduced, to the present hour, the inhabitants of New-Jersey have used, and uninterruptediy exercised the right of erecting and establishing docks, wharves, piers, ferries, and fishing weirs, iw front of their lands adjoining Hudson river and all other navi- gaule waters, and ha\e uninterruptedly used the waters of the Sudsen river, and the sea adjoiuing aadcoutiguoua to their shores.. for the purposes of navi.^ation, trade, fisliiiig, &r., iit the same rnannci' as any other American colony did use. occupy, and enjoy their own shores, and the navigable waters adjoining and contigu- ous to them. Independent of any grant, act, stipulation or agree- inerst, we are, from the nature of the transaction, led to consider, that, in settling and colonizing the wilderness of America, every district of country erected into a sepaiate and distinct colony, Avith the powers of government, either royal or proprietary, be- came entitled to the use of the navigable waters by which tliey are bounded, as part of the territory and domains of the colony, sub- ject, however, to the geneial jurisdiction of the crown, made for the purposes of trade, revenue, and defence : that the several colo- nies, in respect to each other, were wholly independent, and placed, in respect to their relative rights, in the situation of independent territories. Being, then in j)ossession of these rights, as we ap- prehend, by exjiress grant, by the understanding of all parties con- cerned at the time of the grant, and the general principles of law in respect to the same, and having ever since actually exercised and un- interruptedly enjoyed them, we are at a Joss to conjecture on what ground or foundation the 'itate of New- York could build up a claino adverse to them. We apprehended that there existed some grant withl a date anterior to the settlement of the country, and transcending all our lights; but, on the most diligent inquiry, we have not been' able to discover a syllable, in writing or print, on the subject, un- less the charter of governor Montgomery, in 17S0, sixty-siX years after tlie settlement of the country, and the vesting of our rights,' can be considered as such. Tlic cliarter of governor Dung^n to the 1 city of New- York, in 1688, and in the reign of James the second, Avho was formerly duke of York and proprietor of the province, cx|)ress!y limits the juiisdiction of the city corporation to low- water mark on tiieir own shore ; and thus circumscribed, it re- mained until the year 1730, in the reign of George the second, •when governor Montgomery, desirous of encouraging tl»e conimer- cial city of New- York, by endowing it \^ ith large extensive terri-^ tory and jurisdiction, renewed the ancient charters, and extended the jurisdiction of the city corporation, in the first place to Long-I Island, and from thence across the river, taking in the small islands! in the same, when, with cautious circumspection, he approachesi the Jersey shore, in the language following: — ** To low-waterl mark on tlie west side of the North river, or so far as the limits^j of ojir said pi'ovince extend there, and so to run up along the west Bide of said river, at low-water mark, or along the limits of our said province, until," &c. Whether it is intended to set up this charter of Montgomery asj an evidence of the line of the province of New- York extending to| the Jersey shore, we know not; we think that it evidences the contrary — for, if the line of the colony at that time extended to low-water mark on the Jersey shore, governor Montgomery Wfuild never have set it afloat by the equivocal language made use ot in his charter.- The utmost that caa be said of this charter is, that It 25 extends the jurisdiction of the coipnration of the city of New-York as far as the. lisnits of t!ie colony west. The province of N'"\v. V(»rb was iiwT enlar^iti by this chmter, nor is Jt any evidence of the ro- lotiial line; — it says no nioic th.in this, if tlie line of the province ex*^end to low- vvatee mark on tin' Jersey shore, then, and ui linit case, the jurisdiction of the corporation shall extend tlu^re ;ilsoj and if not, tl)'^,n to the line, wheiever it may be. If, instead of low- water maik. it had said, to Arthur Kui! bay and Hackensark li- ver, it would have been precisely the sanje thing; the question, where is the lit)p of the province, would have bem whf)l)y untoufh- ed and undetenninfd by it. The charter of Montgomery, we think, proves conclusively, tliai in 17S0, sixty-six years after the grant of the duke and t!ie settlement of New-Jersey, that there had been no grant, deed, charter, or other instrument of writing, made to the province of New-Vork, designating the low- water mark on tho western shore of Hudson river as the western line of the province. We understand tliat the slate of New Y(»rk entertains an idea tiiat the colojjiiil government i»f New-Yoik was placed in the siioes of the duke of York, and became liis representati\e when this notion took its rise, or on what evidence its legal existence is grounded, is wholly inconceivable to us. In an opinion delivered by Mr. Richard Harrison, at the request of the corporation of the city of New- York, in May, 1804, Mr.. Harrison says, "that it is well known that so much of t!ie land between Connecticut river and Delaware bay as passed by tlio giant of the duke of York, and was not conveyed to the proprie- tors of New Jersey, reverted to the crown upon tlie accession of James the second.'* The colony of New York must, then, not only have been the representative of the duke, but also of the crown. "We look upon all this as injaginary ; — hut supposing it was real, and we were contending with the representatives of the duke of York and the crown, tiie representatives must surely be bound by the acts of their principals. In the grants (tf the duke, afterwards confirmed and explained by the crown, the facts are simple, and capable of being drawn in a small compass. The right of soil anil goveiiiment being ir. the duke of York, he formed a trat t of land» lying westwatd of Long-Island and Maiduittun's island, iiito a colony, and another tract of land, lying on the east of the Hudson river, and including a northern district of country, into another colony ; the two colonies to build docks, wharves, piers, erect fer- ities, fisiung weirs, on or contiguous to each of their own shores, at pleasure, and occupy ar.d enjoy the river in common. The only difference between the two colonies, in this respect, is, that New- Jersey isas a written authority for \\I;at they do, and New-York has none; that New-Jersey simu'd be placed in a worse situation With a written, than Nev^-York without a written title, is to us a matter of sui-prise. >Ve should think tliat a claim so derogatory to the rights of an independent state, and humiliating to the feelings of a i'vee pe< | le,^ should have for its basis a more iolid fouadation thaa ^ny tlsiof ..„ J> 26 Tvliicli has yet appeared to us. We can perceive Bothicg, either m xht' i>r!.y;in;ii formation or pro,a;:ess of tl>e colonial j^ovoinmtnts, that shouli! s;\\€ one colony a superiority over the other, in respect to their respective shojes, and the use of the navigable waters ad- joining^ tlie same, or to the jurisdiction over them. If tlie colony of N<'w York derived any advantages from being a royal g')ver^^^lent, \vhicli is a matter we cannot easily conceive of, yet the colony of ^evv-Jersey, in the commencement of the last century, became a i'oyal government also, and continued so until the revolution, and ia that respect was on equal ground "with the colony of New-York. We are, vi'ith due respect, your obedient servants, AARON OGDEN, ALEXANDER C, M'WHORTER. WILLIAM S. PENNINGTON, JAiMES PARKER, LEWIS CONDICT. To Ezra L'Hommedieu, Samuel Jones, Egbert Bznson, Jo- seph C. Yates, esquires, coQjmissioners, &.c. September 50, ISC^ No. VI, Gentlemei;, We yesterday delivered to you a written answer io yout- obser- vations on the question relative to the construction of the grant from the duke of York to lord Berkeley and sir George Carteret, and you also delivered to us a number of papers, which we have perused and considered, and thereupon find ourselves under the necessity of making a further statement in writing, previous to the intended verbal conferences between us. We have already stated, in effect, that we conceive the subject of the present reference to be a question of boundary, and resolving itself into three questions. Whether New-Jersey is to be restricted to high-water mark? Or whether she is to extend to low-water mark? Or whether she is to extend to the channel ? All depending on the above grant, construed as if it had been immediately from the king: hence if will be perceived that we do not consider the right of New-Jersey to «se the waters in question, separated from her claim to boundary or jurisdiction, as iu controversy 5 on the contrary, we du not sup- pose ourselves authorized, inuch less Ijeltl, to contend for a right in Ncw-Y.)ik to ajjptopri He the ^lsc of tliose waters to her own in- hal)itaMis, or, as it i^s nsiially cx}>re.sse(l, cilizens, to ti»e exclusion, or ill any manner to the prejudice of the citizens of any other state. In answer to the suj^gcsiion, that by the grant the i-ie;ht of go- vernment, or, as we have expressed it, tlic right of jurisdiction. passed, with the soil, to the Ni'W-Jersey proprietors^ and the dif- ference thcrt'by occasioned, as to tlie presumed interest of the par- tics, or, in other words, as to the construction of the grant, we would state, thai the giant is whoUy incompetent, in teiins, to create or convey ^ right of jurisdiction. It contuins uo tvords of grant more operntive than are to he found in every other grant from tlie duke, and to refer particularly to the grants for th«' town- ship of Harlaem, on Manhattan Island, and the township of Brook* lyn, on Loiig-Island, the former being bounded, for at least ten miles, oi» the ILidson, Spit Den Duyvel, Harlaem, and East ri- v(;^s, and the latter, for at least throo miles, on the last river j and yet, as to both the land between liigh and low-water mark, wa« f\ftrrwards granted to the corporation of New York : — as n^ual, it contains man} words altog* ther in >perative, and such as that a perfect estate in the soil or territory, comprehending the rivers ^vitl^in it, would have passed without tlieni, and certainly none of sufficient legal import to pass a right oi' jurisdiction. But admitting the giant competent, in terms, to pass an indei)endent right of ju- risdiction, another question still lemains: was it competent for him to pass it as to a parcel of the territory ? He doubtless might alien the tcnitory granted to him in parcels to others; but it will not thence follow, that, as to the right of jurisdiction granted to him, theic was not always to be urdty. if we may so expi-ess ourselves, even should it at times happen to be vested in a plurality oi natural persons not unanalogous in this respect, as if it had been granted to a corporation, so that neither he rior his heirs or assigns could pass all independent or distinct right 6f jurisdiction to another, over any particular parcc/, and the general right of jurisdiction originally over the whole territoiy, thenceforth, as to such parcel, to cease, and for this obvious reason, that if a distinct right uf jurisdiction could be passed as to one parcel, it might as to rufire, and there be- ing nothing in tiie original grant from the king to limit the vuvi- her, ami the territory or space granted by it being infinitely divi- sible, the several and distinct jurisdictions or governments, or so- vereignties, however they may be most aptly tcimed, might be numberless; but further, there not being any thin.a: in the original grant restrainitig a grantee, to whom a right of jiirisdiciiqn over a 2)arcel of the territory had jiassed, to pass to his alienee of a parcel of such parcels, and such second alienee again on an alienation of a parcel of the [)arcels aliened to him ; also to pass a right of ju^ risdiction to his alienee, and so on, whatever may be the number of the several successive alienations of the respective lesser parcels, ad infuituiTif so that one alienation of the right of jurisdiciicnf az to a parcel, woald defeat the grant altoj^ether, as to tbe vigh\ of 'fnrh,diction intended to be cirated and j2:!iu)trd by it. The {!.n-tition beivv en the |)roi)rietors, it is ti'ue, assumes it that t!te right ofjU' risdicfion., equally with the territory, waa partiMe, tlie ji:<)veniriiint over each moiety becomins: thereby dis'inci and independrvt ol the j^oviMMunent over the other moiety, and the e;rant or further assu- rance frojn the duke to sir George Cartej-et, the grartdson, of the 10th September, 1680, and under which it would seein his execu- trix, the year thereafter, set up a claim to Stateii-lsland, also as- sumes it, that in the partition the pr<>])i ietors had ceased to hold iogetherf as we!! the ri^ht of jurisdiction as the territoiy or land, and the duke accordine^iy tyrants to sir George Carteiet, the grandson, and in full and in express terms the righf ofjurhdiction over his puj'part, wiiat was aj2;reed between the parties ^^o tlie par- tition, should tliereafter be called East JVerv- Jersey, Wc are, how- ever, willing to waive all these questions, and are ready to admit, that as soon as the conquest of the country from the Dutch came to the knowledge of the proprietors, they actually established and exercised a government over the territor-}- granted to them, and, as itnd«'}= a right or power contained in the grant from the duke, that the gover-isment, so establislsed and exeicised by them, was recog- jrlzed by the inlK^bitants and the governnjcnt of New-Yo^ k, by the ciuke, ar)d by the king ; and so far it was a government dc jure, or legitimate, hut tliat in another, and equally just sense, it was a government rfe /(KC^o, only as founded in mere ■practice under the grant; and inasmuch as such recognition was of a governmeiit cer- tairdj not including tlie Oyster islands and Shooter's Island, anc« there being no soatter, either o^ fact or of laiv. by wiiich a houn- dai J could i>e assigned to it, inierniediate betw<-en those islands and the western shore, the recognition was rirfiially of go\ em- inent, whose eastern boundary or limit was high water mark. With respect to the general fact, that New -York has always cxer( ised over the waters between the shores of tlie two states, and the fact, tiiat the mouth of the river Hudson was at or near Be(llov%*s Island, as far as they may be supposed to be in the ]inow ledge of any persons now in life, are so within the knowledge of tw'o of us, as that, in course of the discussion, we shall assume them as pioved ; name'y, that, from their earliest recollection, there has always been a reputatior) or understanding, that the Tvhole of the waters of the liver Hudson, and of the bay between Staten-Island and Long Island, were witliin the actual jurisdiction 01 New-\ork5 that there was not, however, any precise reputation or understanding either way, wiiether such juiisdiction extended to high-water mark, or was confined to low-water mark on the aiiorc of JSew^-Jei sey ; that, as to the waters between Staten-Jsland and the main, there was t)0 reputation or understanding as to a boundary or lir.e of jurisdiction; that the citizens of New-York •ind Ne\ -Jersey had a free atjd common use equally of the waters r:i question, to take fish within the saiiif;, and for every other pur • pose ; and that, arcordinj^ to llio common conception, v,hen a vessel v/as below Bedlow's Island, slie was said to be in tiie bay, and when above it, in the Xortli river. We irmain, with due respect, your obedient servants, EZR\ L'HOMMEDIEU, SAMUKL JONES, EGBERT BENSON, JOSEPH C. YATES, To Aaron Ogden, Alexander C. M'Whorter, William S. Pennington, Lewis Condict, and James Parker, esquires, comniissioners, &c. Oefnber 1, 180r. Ko. VII. Gentlemen, Permit us further to submit — I. Whether it must not be intended that the duke con!)idered the Hudson's river ending at the point wheie the main sea commenced, or otherwise, can it be intoided that he meant to leave a chasm in the line of the eastern boundary of JNew-Jersey. li. Whether the duke intended the Kill of Kull as part of the rr.ain sea, under the follDwing considerations : — 1st. That the word Kill mcins river, and cannot therefore be considered as part of t!je main sea. 2d. The Hudson's river does not empty itself into the Kill of Knil. 3d. The course of the Kill Is east and west, and not north and south, and consequently would form a southern, and not an easteru boundary. 4th. That the waters of Rarltan bay, extending westward from Sa»»dy-Hook, would form a northern, and nut an eastern boundary. III. ^'^ hetlicr the common law constructi'wi of grants that we have submitted, will not be sufficiently reconciled with the mle of construction, as understood in New-York, in o)-igi»ial gi-ants there oy a recollection that the duke came to the cii.wn in 1684, after which all such grants might be considered as royal grants; and whether, by this considpration, v^-e may not avoid the dilemma of puttirg aside the lex loci of New- York or the common law of the realm, as understood when the e;rants of the duke were made. We remain, with respect, your obedient servants, AARON OGDEN, WILLIAM S. PENNINGTON, ALEXANDER C. M'WHORTER, JAMES PARKER, LEWIS CONDICT. To Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and Joseph C. Y^tes, esquires, commissioners, &c. October 5, 1807. No. VIIL Gentlemek, In answer to the two first questions you suhmitted to us yester- day, we say, that as tl)e grant from the duke expresses the south- ern boundary by the main ocean, and the eastern by tlie main sea^ it is to be presumed that the terms, though thpy frequently have the same, yet, as used in the grant, were intended to have different significations, and which accords with the fact, the bay between Sandy-Honk and the Narrows may be denominated sm, but to de- nominate it ocean would be a forcible mode of expression which the occasion only miglit perhaps tolerate. The v/ater between New^- Jersey and the western shore of Staten-Island is certainly neither river nor creek^ in the strict and most correct use of the terms, but is, what its present name properly imports, a souncU which is an arm of the sea, being a passage, and in that sense may be consi- dered as sea, and it appears that the instant tiie question occurred, ■whether the appellation of river or sea was to bo applied to it ? the latter was preferred as the more proper, and the error in the pre- vious Indian deed coi-rected in the subsequent formal grant by the government accordingly. Kill van Kull, consi«Iered as a continua-, Hon of the passage by the sound to the bay, ma} also be denomi- Diitod sea, and at the same time, v.hcn considered as the passage betweeji the bay and the Jlchfcn Kul, or Back Kul, or bay now New ark bay, it may be also denominated the Kill, and so the JCdl of the KulL The Dutch word Kill has been used in this country without any precise or definite meaning, as will be perceived when it is mentioned, that the Mohawk river was called the Maquaar Kill, the passage between the Hudson and Harlaem rivers, round the northern point of Manhattan Island was called Spit Den Duy- vel Kill, and New- ''own creek, an arm of the East river, dividing t\\{' ' ounties of King's and Queen's, on Long-Island, iov some miles, and no stream issiijing into it, or passage ifrora it, was called 31 Mispat Killf 63 that the sense in which it is to be understood must always be accoidine; to the subject matter. It will, however, be perceived that Kill van Kull is wholly with- out the question ; for if the boundary is to pasv thiough the Sounds and wot through the JSTarrows, then it, of course, must pass down throui^h Kill van Kull to reach the n'outh of tl;o Hudson, and if the line is to pass through the JSarrows, then Kill van Kull, and it can have no possible relation to each other; so that either way the inquiry, whether Kill van Kull is to be declared an arm of the sea, or a river, or a creeks is useless. That the mouth of the Hud-;on is at its confluence with the East river, we might merely relrr t*. Vnn Der Donck, and to the state- ment we have delivered, tliat s h as been the common conception in regard to it hitherto; but, in addition thereto, we conceive our- selves warranted in asserting, tliat so it exists in nature, though we at the same time admit, that for legal or artificial purposes, and such as right and justice w')uld require, the river itself might, con- 3tiuctively, be considered as commencing not only at the Narrows, but even at Sandy-Hook, the enti-ance into it fsom the ocean. As to the objection, that the course of Kill van Kull is east and west, and that the waters of Raritan bay extend west from Sandy-Hook, so that the Kill would form a southern, and the bay a northern boundary, we answer, t!iat supposing the ocean to be the southern boundary, then a line from S;indy-Hook aloiig the shore of Raritan bay through the Sound and Kill van Kull, and uj» the Hudson to the degree of latitude, we conceive may, with propriety, be de- nominated the eastern boundary, notwithstanding the deviations of some of the curvatures or courses and distances in it, from its general northerly and southerly direction. In answer to the third question, we would mention, that we do not know, neither have we any reason to believe the distinction you surmise between the grants of the duke before, and those by him after he came to the crown, has ever obtained : referring, therefore, again to the subsequent special grants which have been and still Continue to be made for the soil below high-water mark, as proof or example, we will only further state, they have all taken place without discrimination, as it respects the prince or person from whom the grants for the adjacent upland were obtained, and pro- ceeded on one uniform simple assumed principle, that the grants for the upland are within the prerogative rule of construction. We are, with due respect, gentlemen, yours, &c. EZRA L'HOMMEDIEU, SAMUEL JONES, EGBERT BLNSON. JOSEPH C. YATES. To Aaron Ogden, William S. Pennington, Alexander C. M*Whorter, James Parker, aod Lswia Condict, esquires, commissioners, ice. Octohr 2, X80r, No. IX. Gentlemek", Upon leading' your first note, handed ns this day, it has occurred to us a«i prnpe to submit to yon t!ie followine^ rottsiderations : — lst» Whether the .general question of boundary between tlie two states does not involve in it the consideration, whether the high- %vater mark or the litfvs on the eastern side of tbe Hudson river, be tiie true and le,£:al line of division, equally with the lines of di- vision stated by you. As you will recollect, in our first communication we urge, that the duke, having granted to us all the land lying ;ind being tn Tiie westward of Long- Island and Manhattan's Island, gave us ground to contend, that the true intetit of the grant was to i'lvest us with the soil or land under the water of that river, and the grant con- veying also all rivers^ fortifies the idea. And although it may be said, that the subsequent part of the grant binds us by the river, it is still to be recollected, that if the soil under the water passed by a just construction of the deed, no subsequent woi ds in the same deed could defeat this right. 2d. We are by no means satisfied with the opinion entertained in New York, tlij^t the grants of the duke of York are to be con- sidered as acts of the king, or, in other words, royal grants. Sd. We wish not to be undei'stood, that we are contending for the use of the waters lying between t!ie two states merely as a coiiimon highway, which every alien friend would possess equally with us; but tliat we consider them, at least to the Jilum aqvWf as within our jurisdiction, and the lar.d lying under them as part of the territory and clomains of the state. 4th. We apprehend it must have escaped your notice, that tlie powers of government are conveyed to the East Jersey proprietors in the conUrmatnry grant of 1682, in direct and unequivocal terms, as fijilv as titey are granted to the duke, for which we refer you to an extract of that grant, accompanying this paper, and marked I>io. 1. 5th. As to the competency of the duke to grant an independent right of jurisdiction, we apprehend that tlie proclamation of Chai les the srcond, bearing daf<' the 13th June, 1674, and also his letter of the 23d November, 1683, must have escaped your notice, in which t)iis I igl;t is not merely implied, but expre^sly lecognized, extracts from which we herewith deliver you, marked Nos. 2 and 5. It may be a question, whether, at the common law, the power of creating an independent government could be conveyed even fi"ora the king to a subject, much less from one subject, in divided parts, to other subjects; yet it was done, and subsequently acquiesced in by ;ill parties concerned in interest, viz. the duke and the king; and New -Jersey th»»rclb(e became an independent colony de jwre, as vou candidly admit a recognition by the inhabitants and go- Tcrnuient of New- York, was in no wise necessary to Baake th«^ right legitimate. It was not in this point of view alone that we meiitiont'd the grant of the powers of government, hut to shew that it was the intention of the duke, at the time of the grant, to erect all the territojy tying westward of Long Island and Manhattan's Island to the forty-first degree of north latitude into a colony, witli •the ac«-iJstomcd powers of government, and that therefore the grant was entitled to a different construction and consid<*ration as to the navigable waters adjoining the* territories contained in it, than if it had been a grant of a small tract of land unaccompanied with such intentions. 6th. We do not admit it to be a fact, as advanced, that New* York has ever exercised the exclusive jurisdiction of Hudson ri- ver, nor do we think that reputation or common understanding will be sufficient authority to assume that fact. We think we are correct when we say, that the reputation and common understand- ing of New-Jersey was contrary and repugnant to the reputation and common understanding in this respect in New-York. Besides West-Chester county, we understand was, previous to tjje revolu- tion, (and we presume is so still) actually bouneaning is to be collected from the description of the course as being norths and the situation of the land as lying westward of Manhattan Island and Long-Island, and not as lying v\estward of Manhattan island and Staten-Island, which otherwise would have been his mode of expression. We cannot yet perceive why the common law construction of the duke's grant, which is manifestly according to his real iviterest, should, in a discussion like the present, be given up, in oi-der to let in a narrow prerogative construction, which is defined to be '* law in case of a kingy -which is not law in case of a subject ;^^ which eon- struction, if canied to the extent under the arguments w hich have been delivered to us, ousts Nljw-Jersey from all jurisdiction on her shores lying adjacdht to Delaware river, Delaware bay, the main sea, the Raritan bay, the Sound, and the Kills, and from tlicnce to the forty-first dcgiee of latitude on the Hudson river. We are, gentlemen, yours, &:c. AARON OGDEN, WILLIAM S. PENNINGTON, ALEXANDER C. M-WHORTER, JAMES PARKER, LEWIS CONDICT. To Ezra L*Hommedieu, Samuel Jones, Egbert Benson, Jo™ 3£PH C. Yates, esquires^ commissioners, &c. ,Octobtr S, IBOTc 87 No. xn. OENTLEliEN, We have attendod to the propositions contained in one, and to the qiiestions contained in the other of your communicatiotis of the 2(1 instant. The propositions, when considered as in the abstract, and with some exi'lanations or modifications, and which \vc are jjcrsuaded you would adn)it as requisite to render tliem more definite, proba- bly would not be disputed by us; but we do not perceive how they or the authorities y that we have been misconceived if it is supposed that we consider- ed the expression main sea, in the grain from the duke, as denot- ing its southern boundary ; on the contrary, we co))tend tliat sea and oceaiiy as they stand in the grant, are to receive different sig- nifications, and that the ocean is its soulhern, and that the sea forma -^ part of its eastern Ijf.urnhuy, and tliis i.tej-pretaiion is confirmed ■>y the partition deed between the propnclor^ in 1676, and the two 41 eiubsequent grants or confirmations from the duke, of the 10th Sep- tember, 1680. and the 14th Marrh, 1682, in whicli the boundary of East New-Jersey, from Little Eg(i;-Harbor to the dcj^ree of lati- tude on tlie Hudson, is described '* as extending eastward and northward along the sea cofls/ and Hudson's river," and which, by the familiar process of redendo singula singulis^ and to tJiat end trau-<[)osing the words, may be made to read, *' extending eastward along the sea coast, and northward along the fiudson river^^^ aiijl then, as it respects the eastern buundai-y, a case of the nature we have in a former communication suggested, would arise, in wliich the Hudson ought constructively to be considered as commencing at Sandy- Hook. One thing is assuredly evident, that the partition deed and the two subsequent grants suppose the course of the cofli* from Little Egg-Harbor towards Sandy-Hook to be, for a distance easterly, and if foi- any it must be the whole distance, there no wheri* existing a natural boundary for i^uch a distance less devi- ating from a right line than that reach or portion of tlie coast. We will only add, that the subsequent use of the term coast as a synonyme of ocean, is scarcely to be conceived applicable to a bay or other arm of the sea, is decisive that our intei-pretation, as to the diiferent senses in which the terms ocean and sea, as used iti tho grant, are to be received is correct. We remain, v/ith due respect, your obedient servants, EZRA L'HOMMEDIEU, SAxMUEL JONES, EGBERT Bi'NbON, JOSEPH C. YATES. 'To William S. Pennington, Aaron Ogden, Alexandeh C, M*Whorter, James Parker, aud Lewis Condict, esc[uire5, cominissioiiers, he, October 5, I80r, No. XIV. Gentlemek, 'rms of the sea and navigable rivers are subject to a ^U3 publi'- cum<, a jus privatum, and a jus regiuin. To this last right, singly^ we rneant to appl^' tlie propositions arising from the sovereignty of New- Jersey, as distinct from all the other considerations we had therefoie laid before you. We mean explicitly to exclude, under this head, all questions o£ right or title to ten itory or property^ as arising from the dukc-'a grants, and to confine ourselves merely to thit. j"u6 regiuUi. Lnder this explanation, we beg you to cotisider our com mu mention of th^ second instant, in reference to this j^articuiar riij;hk P If it be true, as heretofore stated, that the crown exclusively ex:- ercised this jus reghnti (beine; one of the ree;alia) io virtue of i(s preroi^ative, through the agency of tl)e lords commissioners of trade and plantations, independent of paiiianient or any colonial assembly, it seems then to follow, that the rights exercised by New-York, of which you speak of your own knowledge before the revolution, must have partaken of the nature of the jus jmbliciiiv ^\u] jus privahnn only, and can have no reference to the jus reginniy, v;hich we presume was never out of the crown of Gieat Britain while its king was our sovereign. Suffer U3 here to refer to the many instances of the jus ■piihlicuvi and jus privatum by New-Jersey, wlsich we have before enume- Tated, most of which have been within our actual knowledge and observation. The king, as stated by you, was the sovereign and a componenl part of the government of New-Jersey, as well as of New York and Great- If ritain at the time of the revolution, whence the con- clusion appears tq be necessary, that the jus regium theretofoi^ exercised by the king over the shores and adjacent waters of that part of the realm called New-Jersey must have naturally devolved upon the sovereignty established in New-Jersey, and not upon the Govereignty established in New York. It is submitted to the gentlemen of New-York, under this view of the subject, whether the evidence, to which tiiey have leferrcd, of the jurisdiction de facto since the revolution is of such remark- able facts, or can in any way amount to that immemorial usage or prescription right spoken of in public law, and which would oust New-Jersey from all kind of sovereignty and empire in and over its shores and adjoining w^aters, provided she had acquired such sovereignty by the assertion and vindication of her independence. "We remain^ with respect, your obedient servants, AARON OGDEN, ALEXANDER C. M^WHORTER, ^VILLIAM 8. PENNINGTON, JAMES PARKER, LEWIS CONDICT. To Ezra LTIommedieu, Samuel Jones, Egbert Benson, Jc SEPH C. Yates, esquires, commissioners, &c. October 5, 1807. No. XV. Gentlemen, After mature deliberation, and due attention to the written com- munications that have passed between us in our late discussion, wo are of opinions that according to the tcrpis and manifest intentiori 43 of the duke of York, in his several grants (o lord Berkeley and sir Geor.a;e Carteret and their assigns, that the eastern boundary line passes tiirough the Narrows, and not through the Sound and Kill of Knll J* and further, that, in virtue of these grants, as also of so- vereignty of the state of New-Jersey, tliis boundary line extends usque adfilum aqncs, or the midway of the river Hudson, or otlier waters lying between the shores of the two res|)ective states. We have to request from you an equally explicit opinion. Should our respective opinions be found unfortunately to differj then we beg leave further to request from you, generally, your genfiments, as to the probability of accommodating our differences, by establishing a boundary line more con\ anient to New-York and New-Jersey, respectively, at the same time leaving to New-Jersey ail her froc navigation, than to run the line according to the opi- nions of right that may be entertained by the respective boai'ds of -commissioners. Yours, with due respect, AARON OGDEN, WILLIAM S, PENNINGTON, ALEXANDER C. M'WHORTER, JAMES PARKER, LEWIS CONDICT, To Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and Joseph C. Yates, esquires, commissioners, ^c. October 6, 1807- Ko. XVh Gentleme:^, In answer to your note of this day, we can only say, that such are the facts, and such, to our minrls, have appeared tiie reasonings from them, that we have not been able to persuade ourselves other- wise than that New-Jersey cannot lightfully claim Slaten-Island, or below the western high-water mark of the waters between the shores of the two states. Tlie citizens of all the states in the Union have the benefit and use of the navigable waters within the jurisdiction of New-York, in common and equally free with her own citizens, and the citizens of New-Jersey may avail themselves of her existing provisions for gratuitous grants to owners of the adjacent lands, for land below high-water mark. Still any proposition from you on the ground of consulting the., mutual and due convenience of both the states, specifying or defin- ing a line within which New-Jersey is to have the jurisdiction, free in future from the clainas of New- York, to the end that her **•* citizens may then have the benrfit or use, without unreasonable detviment lo others, or appreheisions of evils of a public or .ercne- ral nature, and which they cannot have if the jurisdiction of ^{ew■- Tork is to extend over the whole of the waters in question, it cer- tainly will receive our deliberate, and, we trust, unprejudiced consideration ; and at the same time it is submitted, whether inas- much, as already with respect to the laws of quarantine, and aG the period is approaching when, in evf^-y other respect, a strict, and, of course, an expensive police will be requisite over the wa« ters in the vicinity of the city of New-York, and that, in order to its being effectual, it must be co-extensive with the waters them- selves, it will behove both parties to proceed with cautiuii in a xnea-^ure of such magnitude, and not to be foreseen in all its con* ctquences. EZRA L'HOMMEDIEU, SAMUEL JONES, EGBERT BENSON, JOSEPH 13. YATES. To Aaron Ogden, William S. Pennington, Alexander C M*Whorter, James Parker, and Lewis Condict, esquireH>, commissioners, &c. October 6, 1807. No. XVIL GektlemeK", Being so unfortunate as to differ on the question of right, and you having cast hack on us the necessity of loaking proposals fop accommodation, we w^ould ask, whether it would accord with your Tiews (should the state of New-Jersey relinquish its claim to Staten-lsland) to run the line from the middle of the Hudson river^ in the forty-first degree of north latitude, and so down the middle of said river through the bay, the Kill of Kull, and the Sound, but 'in such manner as to leave the jurisdiction of the Oyster or small rslands in New- York ? Wc remain, with due respect, your obedient servants, AARON OGDEN, WILLIAM S. PENNINGTON, ALEXANDER C. M'WHORTER, JAMES PAKKER, LE>yiS CONDICT. "To Ezra L'Hommedieu, Egbert Benson, Samuei. Jones, JO" PEPH V: Yates, esjjuires, commiesioners, &c* October 6, 1807. 45 No. xvm. Oentlemen, W\ took it for granted, tbat havin.e: declared ourselves definlteljF a.fif; Mist the admission of the claim of New- Jersey, as founded m riejht, that the propositions of accommodation^ if any, were t'. >ri- ginafe on her part. We cannot accede to a proposition hy which the middle of the river Hudson, for any distance, shall be th • lino dividing the jurisdiction. We are, gentlemen, with due respect, yours, &c. EZRA L^HOMMEDIEU^ SAMUEL JONES, EGBERT BENSON, JOSEPH C. YATES. To Aaron Ogden, William S. Pennikcton, James Parker, Lewis Condict, and Alexander C. M'Whorter, esquires, commissioners, &c. October 6, 1807. No. XIX. Gentlemen, Understanding that no line will be agreed upon by you on the principle of an accomniodation of diiferences respecting the eastern boundary line of New-Jersey ; and further, that you fannot consent to jinake any propositions to us upon the subject, permit us to say, that we do not perceive any further utility in continuing the pre- sent discussion, unless you have some further communications to make us. We are respectlully yours, AARON OGDEN, ALEXANDER C. M^WHORTEE, WILLIAM S. PENNINGTON, JAMES PARKER, L WIS CONDICT. 'to Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and Josepu C. YateSj esquires, commissioners, &c. October 6, 1807. No. XX. GENTLEMEK", We can only repeat, that a proposition of a line having for its object the convenience of the citizens of New-Jersey will be re- ooived by us, and in deiiberatins on it we shall only regard the 46 considerations ^e ]ta.m sug^gested of benefit and use to accrue to them, of detriment which others may suffer, and of evils to be ap- prehended to the whole community, and consequently we decline au accommodation on any other .^rounds. We are, gentlemen, yours respectfully, &c. EZRA L'HOMMEDIEU, SAMLEL JONES. EGBERT BENSON, JOSEPH C. YATES. To Aaron Ogden, William S. Pennington, James Parker, Alexan- der C. M'WaoRTER, and Lewis Condict, esquires, commissioners, &c. No. XXI. GENTLEIVIEN, It is not for the state of New-Jersey to ask and receive benefits from the state of New-York — we have not been commissioned for any such purpose. As the claim of New-Jersey, as stated by us, has unfortunately failed to produce in you a disposition to settle a jurisdictional line upon principles of mutual concession — which principles, and not any conviction of right in New-York, constituted the basis on which we made our inquiry in the note of yesterday ; and as you will not treat on this basis all other attempts towards accommoda- tion are at an end. We are at a loss to conjecture where it is you have imbibed an idea so wholly unworthy of us, as that we would treat for the con- venience of individual citizens at the expense of the just rights of tlie state. We remain, with due respect, your obedient servants, AARON OGDEN, ALEXANDER C. M'WHORTER, WILLIAM S. PENNING ION, JAMES PARKER, LEWIS CONDICT. To Egbert Benson, Ezra L*Hommedieu, Samuel Jones, and Joseph C. Yates, esquires, commissioners, Sa:<, OdoUr 7, 1 807. APPENDIX. By the honorable Philip Carteret, esq., governor of the province t»t East New-Jersey, under the right honorable lady Elizabeth Carteret, sol^ executrix to the right honorable sir George Carteret, knight and baronet, deceased, late lord proprietor of this province, and his council, To the honorable the governor or commander in chief of all his royal high- ness' territories in America, at New- York, and his council there. Whereas I have an order to lay claim to Staten-Island, as properly and justly belonging to the lord proprietor, his government and jurisdiction of this province, and doth appear by his royal highness' grant, under his hand and seal, bearing date the 10th day of September. A. D. 1664. Wherefore these are in the lord proprietor's name, and, by virtue of the said grant, to demand of you the surrender of the said island unto me, with the quiet possession thereof, and that yourselves, or any other per- sons by your authority, do forbear the exercising any command, authority, or jurisdiction within the said island ; in which 1 do expect your speedv answer and compliance. Given under my hand and seal, the 522d July, 1681. PH. CARTERET. The letter to captain Arthur Brackett, deputy governor and commander in chief of New-York government, &c. Sin, According to my orders, I have sent to Mr. La Prarrie and Mr. Bol- lin, to demand the surrender of Staten-Island into my pcsssession and go- vernment, as of right belonging unto sir Georgf Carteret, lord proprietor ot the province, as you may see by the copy of his royal highness' grants «ent you by them ; concerning "ivhich pray let me have your speedy reso- Jution and'answer. Your humble servant, PH. CARTERET. By the honorable Philip Carteret, esq., governor of the province of East New-Jersey, under the right honorable the lady Elizabeth Carteret, sole executrix to the right honorablf sir George Carteret, knight and ' baronet, deceased, late lord proprietor of this province, and his council. Whereas Staten-Island doth of right belong to the provincs of East New-Jersey, as doth appear by his royal highness the duke of York's deed of grant, under his hand and seal, bearing date the 10th September, 1680, b.ut hath been detained by several of the governors under his royal high- 48 iless, contrary to all law and equity ; and having now a special order froaa the lord proprietor to dema»id the same— These are, in his majesty's name, to will and require you, the magistrates, officers, and inhabitants of the said island, tu torbear yielding any obedience to the government or juris- diction of New-York, or to do or act any thing by their authority or com» mand ; but that you forthwith yield obedience to the jurisdiction and go- vernment of this province, and receive your commissions, orders, and in- Blructions from me, your lawful governor, as you will answer the contrary ftt your perils. Given under my hand and seal, the 22d July, A. D. 1681. PH. CARTERET. The foregoing are true copies from lib. iii. page 171, in the office of \ the proprietors of East New-Jersey, at Perth-Amboy. JAMES PARKER, Register. September 10, 1807. Book A, page £, March 28, 1681. — Directions and instruction to James Bollin esq., secretary of our province of East New -Jersey, from lady Eli- zabeth Carteret. " You are to lay claim to Staten-Island, as belonging to us, according to his royal highness' grant; and also the farm at Horsemus, and to take it iato possession for my use." Book iii. page 22, February 15, I6i58. — Articles by Philip Carteret, to John Ogdeii, sen., ar.d others, undertaking a fishing trade; as also the ^ taking and preserving of whales, and such like great fish, &c. ♦' Imprimis — 1 do give and grant unto the aforenamed John Ogden, Caleb Canvitley, Jacob Molleins, William Johnson, and JeSry Jones and conipany, and to all or any of them, free leave and liberty to take or kill any whale or whales, or such like great fish, in any place or places where they may be found or taken, whether at sea, or in any creek or cove be- tween Barnegat and the easternmost parts of this province, without any exceptions of drifts or wrecks. <'2d. That the said persons and company shall have free liberty to firing on shore, at any convenient place or places within the bounds and i limits before mentioned, all such whales or great fish as they shall find, till, or take, and to erect huts or cabins on any person's land by the water- side, upon occasion, for their better preservation of the said whales or great fish, and trying them for the making of oil, or curing of other fisli wey shall take ; provided they do not trespass upon corn-fields, nor da- mage to the stock or cattle of any such persons upon whose grounds they bhal! come. "3d. Extends the limits of the charter to three years. "4th. That, for the encouragement of the said persons and company ■in the prosecution of this design, I do promise and grant unto them, in case Staten-Island falls within this government, some convenient place or tract of land upon the said island, near unto the water-side, tit for the settlement of a town, or society, lo consist of twenty-four families ; and that they shall have a cortipetent proportion of land ailotted to each family or lot, with meadow ground as well as planting land, and free common- age upon the island— each family or lot to pay, as a quit- rent, to the iorrfs proprietors^ their heirs, or assigns, one biithel of wheat yearly.*' 49 Book 3. page 2f, June 21, 1669.— .License from Philip Carteret, go- Tenmr, &c., 'o Peter Hetfelsen, ''to be the onl^ and constant ferryman between Communepau and the city of New-York, for three years." Same book, page 52, January 18, 1671.— License to JobSimerson, fer- ryman, between Bergen, Communepau, and New-York, "witU rates and Con«litions as was formerly granted to Peter Hetfelsen." Same book, page 152, February 14, 1678.— License to Joseph Hunt and others to take whales, &c., within the same bounds as above granted in pae;e 22. Mi.iutes of board of proprietors, A B, page 13.— At a meeting and council i)f the proprietors and proxies — to proprietors of the province, lOth May, 1685. Present the deputy governor, &€.•—" Petition from John Palmer, esq» to have a patent for the lands he has had and taken up on Staten- Island, upon consideration thereof, and that it may be of no ill consequence, but rather of service, in our claim to that island — It is agreed and ordered, that the governor and council mav make a patent of tne same to him.'* Book A, page 185, May 26, 1684.— -Patent from the proprietors of East New Jersey to John Palnier, of Staten-lsland, within the said province, esquire, " All that his capital messuage or dwelling house, with the ap- purtenances, situate, lying, and being on the north side of Staten-lsland aforesaid, within Constable-Hook, near the mill creek, lately erected and built by the said John Palmer, and in the possession of the said John or his assigns ; and all that other parcel or tract of land," &c. This patent is for seven tracts, containing in all 4,500 acres. Book C, two commissions, page 1, August 4, 1718. — Charter to the city of Peith-Amboy, by governor Richard Hunter, describes the bounds as follows: — " Beginning upon the north side of the Raritan river, by the upper corner of that called Peter Sonraan's land, and by the lower corner of that now in the possession of James Moore, of VVoodbridge ; thence extending on a straight line, as said Moore's land goes, to land now pos- aessed by John Veal ; thence, continuing along the said Veal's land, to the north-east corner thereof; from thence, extending upon a direct line, to the Sduth-west corner of David Horriot's land, and so extending along by said Herri.>t's to the south-east corner thereof; from thence extenditigon a straight line to the south-westerly corner of the land lately in the ten- ure and occupation of John Uarhart, formerly one Henry Lessenibtif, and so alofig the line thereof, easterly as it goes, to the meadow or marsh on the north side of a guily, where water gi'oerally runs; thence extending on a direct east line through the marsh and sound to low-water mark, on the easteily side thereof; from thence running down %»the sound south- erly, as far as the southernmost point of Statm Island ; from thence, on a direct line, to where George Willock's plantaiion, called Rudyard's, adjoins by a creek to that plantation, of latr belonging to Andrew B(»wne, deceased ; thence, extending along the lines ot said Bowne's land, (ex- cluding the same) to Matewan creek ; tlence, up the creek to a bridge thereon, where the highway from Ambny ferry to Freehold and Middle- town crosseth the same ; thence, extending along the partition line be- twixt the counties of Middlesex and Monmouth, to Millstone brook; thence, down the said brook, to the post road ; thence, along the same, to Sf>uth-River, as it goes to Raritan river, and so down Raritan river (in- cluding the said river) to high-water mark on the north side thereof, to where the limits of the said town ure said to begin." Book C. 3. page 224, January 7, 1783.— License from governor Basby 50 to Archibald Kennedy, of New-York, to settle a ferry in the county of Bergen, in the province of East. New Jersey, to carry passengers froia thence to New-York, and fnma New York thither. Elisha Parker's warrant for 199 47 100 acres, W 2 16. Archibald Kennedy's, 10 9 100 acres, A B 2 for 226—10 9-100 acre in full— -t« Archibald Kennedy. — •• These do certify, that Elisha Parker, by me dulj deputed and ^worn to the int^'nt herein after mentioned, did survey for Archibald Kennedr, esq., a certain island situate in Hudson's river, ia the county of B igen, aid eastern division of New Jersey, called and known by the name of Bedlow's Island : beginning at a stake standing one chain and sixteen links distant upon x south, tliirty-two degrees and a half east, course from ^ small ce far tree growing out of the side of the bank on the south-easterly side tf the said island, and from the said stake running west four chains and five links ; thence north, forty-eight degrees and a half vvest, five chains and five links; thence north, twenty-six de- grees west, thiee chains and five links s thence north, three degrees and a half west, seven chains and three links; thence north, four degrees east, one chain and seven links; thence south, eighty two degrees east, sik chains and sixty-seven links ; thence, and south, forty seven degrees and a half east, four chains and fifty five links; thence south, fifteen dgrees and a half east, four chains and five links ; thence south, fourteen degrees xvest, six chains and forty links, to the beginning, (at one chain and 'en links of the last course the house bore north, seventy degrees west, at one chain and one link distant) containing eleven acres and forty -tvvo hun- dredths of au acre, strict measure, which, after allowarice, is to remain, for ten acres and nine-tenths of an acre, to vvhich Archibald Kennedy is entitled by virtue of a deed to hi m from Elisha Parker for the said quan- tity often acres and nine tenths of an acre of land unappropriated, dated the 18th day of February, 1746-7, and recorded in lib. A. B. 2 fol. 26. to grant which the said Elisha had right in part of his warrant from the council of proprietors i»f the eastern division of New Jersey aforesaid for 199 47-100 acres of land, dated the 21st May, 1744, and recorded in Ub. W. 2. fol. 16. " Witness my hand, this nineteenth day of February, 1746. "JAMES ALEXANDER, sen/' The foregoing is a true copy from book S. 2. page l69, in the oflice of the proprietors of East New Jersey at Perth- Amboy, September 10, 1807. Book B. 2. psge 251, Nov. 14. 1719. — Patent from governor Morrife to George Wilcocks, to keep a ferry from Amboy to Staten- island. Book F. page 742, Sept. 15, 1697.— Patent to George Wilcocks, for sundry water lots in Amboy, extending into the Sound to low-water mark. Book C. page 70, August 26, 1698.— •Patent to the same, for other wa~ ter lots extending to low-water mark in the Sound. Book G. page 61, May 1, 1699. — Patent to Thomas Gordon, for two lots extending to low-water mark in the Sound. ^ BKRGE>f COUNTY, SS. Cornelius Van Vorst, of Aharsimus, in the county of Bergeh, being duly sworn, deposeth and sailh, that he is now in the seventy nmth yeai of his age ; that he was born where he now livcS, and has resided at AharsimuB fcver since his birth ; that this deponent has been acquainted with (he shore on the west side of the liudeya river, and what ia nov/ called New-York bay, ever since he was a boy ; that this deponent has known that the in- habitants of the town (if B**rgen have unif'Jimly exerciied the riglr of oystering; and fishing in the Hudson river and bay aforesani ever since his recollection, and that the said iiihabitints id' Bergen have also ex<'ir- cised the right of setting fikes upon the fl;its, and of continuing their ex- tension from the shore into the river or ffay from year t(» year, and that tliis deponent has also set fike fences, o;J*stered, and fiirtt-d in t!ie >aid river and bay and upon the flats; and this deponent further saitli. that he never knew any of the people of New York exercise the right of set- ting fike fejices upon tiie flats or on the wfst side of the Hudsun's river ©r bav aforesiiid, within the limits afores^d, excepting one person, aboiit two years ago. who this deponent ffnderstodU hiid set a fike fence betweea the wo islands, but of this this deponent has no certai . knowledge; and this d 'ponenl furtlier saith, that, wiien a boy, he uriderstood frun the ild inhabitants of Rergen, (hat it had been the practice at the town meetings of the corporation of Bergen they appointed certain officprs-, who f ey called water-bailiffs whose parti .ular duty it was to appre?h^nd (*ffetiders upon the waters within the said township, which were considered to in- clude those from the western shore of Hudsm river and west of the bay aforesaid, to the deep waters in said river and bay ; that this deponent understood that Jacob Vanhorn and Minard Gartbrarits were two of the persons who held the said office of water-bailiSs, and that s;iid bailiffs did irequeotly apprehend persons belonging to the city (,f New-Vork oyster- ing upon the flats, and bring them before the authority then in Bergen ; and this deponent further saith, that he never undei stood that any legal measures were taken by the persons from New York thus apprehended in defence of the right ; but this disponent was informed, that, after some time, a number of the people of New-York came over armed with mus- kets, and drove off the said bailiffs; and this deponent further saith, the records of the annua! proceedings of the corporation of Bergen, of the year of which this deponent now speaks, have been lost or destroyed. And this deponent further saiih, that he established the present ferry at Jersey, (then Powles-Hook) about forty years ago ; that he built a docfc and ferry-stairs, for the accommodation thereof, into Hudson's river, be- yond low-water mark, and that no «ibjection was made by the people or corporation of New-York for his so doing; that since the first establish- ment of the ferry aforesaid he has extended the ferry-stairs and dock still further into the Hudson river, and no -ibjection was then made by the people or corporation of Ne\\ York for his so doiiig; and this deponent saith, that the said ferry has been established ever since the memory of this deponent, and that the ferry ai Hoboken has been established nearly as long as the ferry at Powles Hook; that the ferry stairs and dock, as well at Weekauk as Hoboken, have for many years been extended beyond low-water mark in the Hudson river, and that this deponent never heard any objection mak plare, out; alderuian and two as.-i«tar.t8 of the Corfiorati(>n of New-York cam^over tv this der*ine?,t, and asked permis- sion to firh for the use of the ^n^s-'""^8e, which this depoiunt permitted them to do ; since which this deponent does not recollect Swy interference bas been made bj he corp<'ratJun or ptcple if New-Yotk with the rij^ht of fisliing of the people of Rerg^n, noi ha^e thev *ince requested jjormis- sion to fisli, to this deponent's knowledge, but (lis deporunt%)elie\es that the people of New York, as w^II a;< Irom s'ime pa\t8 of Jemc^.have prac- tised o^ster'ng upon the flats, and in nudson river and New-York baj.— = And further this deponent saith nut. CORNELIUS VAN VORSTc Sworn B^ftre me, this 2Sth September, 1807. (SKAL.) PHILIP WILLIAMS, A^'otary Public, And whereof an acknowledgment being requited, I have gianted the game under my notarial f^rm and seal, at the town of Jersey, the day an^ year above written. PHILIP WILLIAMS, Mtary Publkl MESSAGE OP • HIS EXCELLENCY THE GOVERNOR, TOGETHER WITH THE REPORT COMMISSIONERS APPOINTED ON THE PART State ot lilc^^3ri*s(jjrs> SETTLE THE QUESTION OF TERRITORY AND JURISDICTION IN DISPUTE WITH THE &c. &c. FEBRUARY, 1820. TRENTON: PRINTED FOR THE STATE BY JOSEPH TUSTirE. 1828. MESSAGE, &c. EXECUTIVE DEPARTMENT, Trenton Feb. 4, 1828. 'Gentlemen of the Legislative Council, and of the General Assembly. I LAY before you a report and statement of the claims of New- Jersey to the Hudson river and Staten Island, by the commis- sioners appointed under the authority of this state, to negotiate an amicable seldement of the existing differences between the states of New-Jersey and New-York, respecting boundary and jurisdiction ; from which you will learn, that notwithstanding the commissioners on the part of this state, have manifested the strongest desire to effect a settlement of these differences, by offering to make great sacrifices of the just rights of this state, to attain that desirable object, and by insisting on no conditions incompatible with either the honour or the interest of that state to have conceded to us : yet the negotiation has not had a sat- isfactory issue. The repeated overtures which have been made on the part of New-Jersey, as well as the liberal terms of compromise offered by our commissioners, cannot fail to place in a strong light the constant and strong disposition on the part of this state, to remove every source of irritation and dispute, and to terminate in any reasonable and satisfactory mode, the unhappy differences be- tween the two states. In 1806, her legislature made advances for that purpose, by appointing commissioners to meet commissioners, to be appoint- ed on the part of New-York, to settle the limits within which the respective states should exercise jurisdiction on the waters lying between their shores, and to determine the eastern boim- dary line of New-Jersey ; when the commissioners appoint.ed by the respective states attempted, but without success, to settle the question of strict right. In 1818, New-Jersey made a new proposition to settle the controversy, and offered to appoint commissioners to agree with commissioners to be appointed by New-York, to make a state- ment of facts, relative to the controversy, to be submitted to the decision of the Supreme Court of the Unhed States, which,* by the federal constitution, has original jurisdiction of all controver- sies between two or more states ; and where the questions of boundary and jurisdiction, might have been temperately discuss- ed, and fairly and justly decided j but which overture remains to this day unanswered. As the legislature of New-York, by their silence, declined a judicial decision of the matters in controversy in, 1824 the legislature of this state, in the hope that an amicable adjustment of the differences might be made to the advantage of both states, upon the principles of compromise and mutual concessions; and without agitating the question of right, about which the former commissioners had disagreed, passed an act for that purpose, au- thorizing the appointment of commissioners by the executive of this state, to meet commissioners to be appointed on the part of New-York; but the time limited in our act was suffered to expire without the legislature of New-York passing a corres- ponding law on their part. In the year 182G, the deputy sheriff of Richmond county was arrested and indicted in this state, for serving process within the jurisdiction of New-Jersey, under the authority of the laws of New- York; when upon an application from the go- vernor of New- York, the executive of this state directed all further proceedings against that officer to be suspended, until af- ter the meeting of the legislatures of the two states, in hopes that the New-lork legislature might be induced by the perilous situ- lion in which one of her officers was placed, in consequence of the conflicting claims between the two states, to agree to some fair mode of settling the controversy ; and thereby render unne- cessary the further prosecution of that officer, for the purpose of maintaining our jurisdiction. And in the sannc year, upon an informal intimation of the go- vernor of New-York, to the executive of this state, that if the time was enlarged by our legislature for the appointment oi commissioners by the respective states, commissioners would probably be appointed on the part of New- York, our legislature passed an act for 'hat purpose, which was duly communicated to the governor of New-York ; but which was tardily met by the legislature of that state, and under circumstances \vl:ich gave but little promise of a favourable issue. And it is worthy of re- mark, that pending the negotiation, and whilst our commission- ers were actusilly attending at Albany to meet the commissioners of New- York, a bill passed one branch of her legislature, and which subsequently became a law, asserting and declaring the boundary line of that state to extend " along the west shore a' lov water mark of Hudson river, of the Kill Van Kull of the sound between Staten Island and New-Jersey, and of Raritar. Bay to Sandy Hook"; thereby extending their claim of territo- ry much farther than had ever before been done by any legisla^ live exactment. This government certainly had a right to expect, that pending the negotiation for an amicable settlement of the difTerences, on conditions honourable and satisfactory to both parties, all thing? would have been permitted to remain as they were, and that their legislature would have forborne to make a new assertion of their claims, and especially one which they could not seriously suppose that New-Jersey would ever acquiesce in, as the basis of an amicable settlement. Under such circumstances, it is not a matter of much surprise, tliat the New-York commissioners should reject all terms of compromise which implied an acknowledgment by them, of the right of this state to any part of the waters of the Hudson ri- ver, and should ofFer to us as matters of favour and gratuity, rights and privileges upon our own wharves, and along our own shores, with some other trifling privileges of little or no value ; terms of settlement which were promptly and justly rejected by our commissioners. This conduct, f50 different from that sense of justice, magna- nimity, and amity, that ought to exist between *' independeni communities," renders all further attempts on the part of this state at compromise and settlement, entirely hopeless, and leaves us no alternative, but by enforcing the laws of the state, to support its jurisdiction, and which have heretofore been suc- cessful in resisting all open attempts to encroach upon our rights or territory. The as:«srlion, which has been repeatedly made, "that New- York is in the exclusive possession of the disputed waters, and in the actual and constant exercise of exclusive jurisdiction over them," is totally unfounded, and is most fully disproved by the constant exercise of jurisdiction, by this state, over those waters, and the actual use of them by our citizens, for all useful and necessary purposes j and by the wharves and piers which have been, and are constantly erecting, under the laws of this stale, along our shores, and extending beyond low water mark; and which encroachments upon their claims of jurisdiction, have, for many years past, afforded to that state fair opportunities to bring the question of boundary between the two states, to a legal de- cision : but it appears that the state of New-York chooses rather to submit to all those encroachments upon the territorial limits claimed by her, than to try the question of title between the two states. And, as a further proof of the unwillingness, on the part of that state, to bring their claims to a judicial decision, I refer to the fact, that, upwards of twenty years ago, the corporation of the city of New-York commenced an action at law against certain individuals for a trespass, or usurpation upon their rights, building the first piers at Jersey City, which are extended into the Hudson river, far beyond low water mark; but which action, since the service of the process, has not been further prosecuted, no doubt from a consciousness of the weakness of their title, and a reluctance to bring it to the test of a judicial investigation. And since that time, other piers have been erected at that city, ex- tending into the Hudson river, for which no action whatever has been brought; whereas no trespass upon our territory, or viola- lion of ourriglus, has occurred, or is likely to occur, to afford to this state an opportunity of bringing to a legal decision, by the ordinary process of law, any question between the two states, as to boundary or jurisdiction. And, by a report made in the senate of New-York, on the 12th of February, 1827, by a committee on the judiciary, relative to the New-Jersey boundary, it is made a question, whether " the article of the constitution of the Unit- ed States, which extends the federal power to controversies be- tween two or more states, gives the Su[)reme Court of the Unit- ed States cognizance of questions which may arise between mem- bers of the confederacy, as to their sovereignty and jurisdiction;^^ and if that court does not possess jurisdiction to settle and deter- mine ail such questions, then New-Jersey has no means within her own power to bring the controversy to a final decision, and must, from necessity, rely upon her laws, and the vigilance of her citizens, for the support and maintenance of her just rights, until a returning sense of justice and amity shall induce that state to submit her claims to some peaceable mode of decision. Since the failure of the negotiation, I have given notice to the prosecuting attorney, that the reasons which induced me to di- rect a suspension of the proceedings against the deputy sheriff of Richmond county, no longer exist; and that he is at liberty to proceed with the prosecution against him. I recommend to your consideration, whether any further legis- lative provision is necessary to secure our citizens in the peace- able possession of their rights, and to prevent any further usur- pation of authority within the eastern boundary of this state; and whether any process of law can be resorted to, to bring the controversy between the states of New-Jersey and New-York to a legal decision within a reasonable time. It will also be necessary for the legislature to make provision for compensating the commissioners on the part of this state for their services, and the very satisfactory manner in which they have discharged the duty required of them. ISAAC H. WILLIAMSON, REPORT COMMISSIONERS, &c. To the Honourable the Legislative Council and General Assembly of the State of JYew- Jersey. The undersigned commissioners, appointed on the part of the state of New-Jersey, to settle the questions of territory and ju- risdiction in dispute with the state of New- York, Respectfully Report : That soon after they received their appointment and com- mission from his excellency the governor of this state, tliey met at Trenton, duly organized themselves into a board, for the reg- ular prosecution of the duties of their commission, and notified the commissioners on the part of the state of New-York, of their readiness to proceed with the negotiation. A meeting of the two boards was arranged to take place at Newark, on the first day of August last, and was accordingly held. Your commissioners, after full deliberation, concluded that it would be proper in the first instance, to waive the formal inves- tigation of the claims of New-Jersey over the waters lying be- tween the two states ; and to endeavour, in the spirit of the act which created their powers, and by an amicable negotiation, conducted upon principles of mutual concession, to settle the controversy upon terms equitable and just. They were the more disposed to this course, when it was considered that the question of title had been long before the public, and had received an able discussion at a meeting of com- missioners, heretofore appointed by the two states for the same objects. And moreover, your commissioners at their first meeting wiih the commissioners of New-York in August last, perceived no disposition on their part, to engage in a formal investigation of y the title ; and it was suggested, that propositions in writing, of an adjustment of the existing difficulties on the waters of the Hudson river and the sound, should be made and interchanged by the respective boards. This was accordingly done, in the hope of thereby arriving at some basis of settlement, where the two states might meet in harmony, and thus terminate a nrotracted and unhappy contro- versy, ^y The proposition No!!3^submitted by your commissioners, in substance embraced the principles of the agreement hereto- fore made between the states of New-Jersey and Pennsylvania, with respect to the river Delaware ; and under which conven- tion, they have experienced no inconvenience, but great bene- fit, in the common use of those waters. On receiving the proposition of the commissioners of New- York, marked No. 2, in exchange for their first proposition, your commissioners were surprised to perceive, that the com- missioners of New- York did not propose to negotiate on the principles of equality of right; but therein considered them- selves in the exclusive and decided possession of the whole wa- ters of the Hudson river, and were only willing to concede to New-Jersey, and that with a sparing hand, certain specified pri- vileges. The undersigned promptly apprised them, that they could not negotiate upon such a basis, and that any convention made up- on such terms would not only be repugnant to our own convic- tions of the rights of New-Jersey, but would never receive the sanction of our legislature. The commissioners on the part of New-York, professing a desire to settle the controversy, proposed that further efforts should be made by the modifications of their respective propo- sitions; and accordingly, at a subsequent meeting at Newark and at several succeeding meetings at Albany, the subjoined propo- sitions, marked No. 1, 2, 3, 4, 5, C, 7, and 8. were inter- changed. In all of which, on the part of New-York, the undersigned B 10 regret to state, as your honourable bodies will perceive, the ex- clusive right and jurisdiction of the state of New-York over the Hudson, is considered as unquestionable and conclusive, and in the powers conceded to the state of New-Jersey, we could not fail to be struck with the guarded restrictions, that by necessary construction, effectually excluded her from even a concurrent ju- risdiction over any portion of these common waters. In the terms of settlement submitted by your commissioners, they endeavoured to remove any ji3^ground of exception, by yielding to New-York exclusive jurisdiction over the adjoining waters in several important matters, which the health and com- mercial welfare of the city of New-York seemed to require. As that great and rapidly increasing emporium of commerce, is identified with our national prosperity, and maintains very ulti- mate and constant relations in business, with the state of New- Jersey, we deemed these concessions to be justified, as well by sound public policy, as by the spirit of accommodation, with which we approached the duty assigned to us. Influenced by a desire to promote those friendly feelings, so essential to the well being of sister states, we further proposed to relinquish the claims of New-Jersey to Staten Island and the adjacent small islands in the intermediate waters. After several conferences with the commissioners of New- York at Albany, that only furnished additional proof of their de- termination to adhere to the principles of their first proposition, the undersigned became convinced, that further negotiation would be fruitless, and therefore concluded it, by addressing to ihem the note marked A, the answer to which ' marked B, and the further correspondence, marked C, and D, are hereto subjoined. Believing, as we firmly did, that New-Jersey possessed at least, equal and concurrent rights over the Hudson, and the oth- er dividing waters, and that her property rightfully extended to the middle of that river, we could not consistently extend the concessions of New-Jersey beyond the terms of our proposi- tion?. II We have deemed it proper to submit with our report, a state- ment of ihe claims of New-Jersey, to tlie Hudson river and Staten Island, and the reasons in law, on which those claims are founded. RICHARD STOCKTON, JOHN RUTHERFURD, THEODORE FRELINGHUYSEN, LUCIJJ§ Q,. C. ELMER, JAMfiS PARKER. FIRST PROPOSITION ON THE PART OF NEW-JERSEY. The commissioners of New-Jersey, by way of friendly com- promise and settlement of their territorial and jurisdictional dis- putes with the state of New York, and without discussing or by this proposal, affecting the question of right on the part of either state, proposed to the commissioners of New-York the follow- ing terms : 1. That the waters of the Hudson river, south of the forty- first degree of north latitude and north-west of a line drawn from the south-west point of the Battery, in the city of New- York, to Staten Island, and the waters between Staten Island and the main land, excluding Newark hay, be the boundary betueen the two states, and a common highway, equally free and open for the use, benefit, and advantage of both parties; the rights of fishing, docking, wharfing, and improving upon, and adjacent to the shores of each state, respectively, to be full, free, and exclu- sive, so that nothing shall be done that will teud to obstruct or impair the navigation. 2. That each state enjoy and exercise a concurrent jurisdic- tion within and upon the aforesaid waters, but so that every ship or other vessel being in the s lid waters, and bona fide, de- parting from, bound to, or riding at anchor before any city or town in either state, where she hath last laden, unladen, or departed, or where it is intended she shall first thereafter lade, unlade, or enter, be considered exclusively within the ju- 12 risdiclion of such state ; an(^ every vessel fastened to, or aground on the shore of either state, shall in like manner be considered exclusively within the jurisdiction of such state. 3. That the islands called Bedlovv's Island, Ellis' Island, Oys- ter Island, and Robins' Reef, to low water mark of the same, be held to be and remain within the exclusive jurisdiction of the slate of New- York. FIRST PROPOSITION ON THE PART OF NEW-YORK. The state of New-Jersey shall enjoy and exercise exclusive jurisdiction on ail the wharves and land now made, or which may hereafter be made on the west shore of the Hudson ri- ver, from the northern boundary of the state of New-Jersey a- long the said shore, as well as natural alluvion, to the actual line of low water, provided such wharves and piers do not impede or obstruct the navigation of said river ; and process issuing out of any of the courts of said state, or from any magistrate there- of duly authorized, may be served upon any person indebted within the said state, on contracts arising therein, or charged with having committed any offence within said state, and who may be on board of any vessel fastened to, or alongside of such wharves, or aground on said shore, or who may have commit- ted any trespass or offence on board of any vessel so situated. SECOND PROPOSITION ON THE PART OF NEW-JERSEY. 1. The waters of the Hudson and between Staten Island and the main land, to be the boundary between the two states, and a common highway for both parties, and New-Jersey to relin- quish all claim to Staten Island and the islands in the above wa- ters now claimed and possessed by New-York. 2. The state of New- York to have the exclusive jurisdiction in and over the waters of the Hudson, with the following excep- tions, viz. New-Jersey to have the exclusive right to regulate and exercise jurisdiction over wharves, docks, and other im- | provemeiits made or to be made on the New- Jersey shore and the fislieries on the west side of tlie channel, so that the na- [ vigation be not obstructed or injured; and New-Jersey to have | also exclusive jurisdiction over vessels bound to, or departing from any place in New-Jersey, or riding at anchor before any- place in New-Jersey where she hath last laden or unladen, or where it is intended she shall first thereafter eitiier lade or un- lade, so that the said vessels shall be considered as subject to such general quarantine laws of the state of New-York as the vessels of their own state are or may be subject to, provided that such vessels may be permitted to discharge their cargoes, sub- ject to such quarantine regulations at any port in the stale ot New-Jersey, insiead of Brooklyn or any other port in the state of New-York: and jurisdiction over property taken out of New- Jersey, to evade due process of law, and over persons for acts committed, or debts contracted in New-Jersey, and also con- current jurisdiction as to offences committed, or trespasses done by citizens of New-Jersey on the west side of the main channel 3. The state of New-Jersey to have the exclusive jurisdiction/ over the waters between Staten Island and the main land, with ' the same exceptions in favour of New-York as are contained in the above article in favour of New-Jersey. SECOND PROrOSITION ON THE PART OF THE STATE OF NEW YORK. The commissioners of the state of New- York, by way of mak ing a friendly compact between the states of New- York and New-Jersey, that delinquents and offenders in and against the state of New-Jersey, may be brought to justice, and the dis- pute between the two states as to jurisdiction and limits, may be amicably adjusted, make the following propositions to the commissioners of New-Jersey, the making of such propositions not to affect any question of right between the two states. 1. The inhabitants of New- Jersey, in comraon with the in- 14 habitants of the slate of New-York, shall enjoy the fisheries on the west side of the Hudson river, from the northern boundary of the state of New-Jersey, southwardly along said state, and in the waters between Staten Island and New-Jersey, to be so used however as not to injure the channels or impede or ob- struct the free and safe navigation of the said river. 2. The state of New-Jersey shall enjoy and exercise exclu- sive jurisdiction on all the wharves and land now made, or which may hereafter be made on the shore of the state of New- Jersey, opposite to the state of New-lork, and also to low wa- ter along the whole of said shore, and that civil process issuing out of any of the courts of said state, or from any magistrate thereof duly authorized, may be served upon any person or persons indebted, or liable upon any contract made within the said state, or who may have committed any wrong therein, and which person or persons may be on board of any vessel fasten- ed to or by the side of such wharves, or aground on such shore, provided that such person or persons shall not then be under arrest by virtue of any process or authority of the state of New-York. 3. The state of New-Jersey shall also have the right of serv- ing criminal process upon all the waters of the Hudson river, ly- ing between the states of New-York and New-Jersey, and up- on all the waters between the shores of Staten Island and New- Jersey, for crimes and offences committed upon the land above low water, and within the said state of New-Jersey ; such pro- cess not to be served upon any person or persons, on board of any vessel attached to, lying at, lading or unlading at, or by any wharf, pier or shore, in the slate of New-York, or anchored in any of said waters for the purpose of lading, or unlading as a- foresaid, or who may then be under arrest by virtue of any process, or authority of the state of New-York. 4. The state of New-York shall have the right to exercise all jurisdiction, power and authority, over the said waters, other than such as herein secured to the state of New-Jersey. 15 THIRD PROPOSITION ON THE PART OF NEW-JERSEY. 1. The waters of the Hudson river, and ihe other waters be- tween the two states, to be the boundary and a common high- way for both parties. 2. Each state shall have the exclusive jurisdiction and regu-\ lation of wharves, docks, and other improvements, made or to be made on its own shores, and of the fisheries adjacent to its shores, provided that the navigation be not obstructed or in- jured. All vessels fastened to or aground on the shore of either state, shall be considered as exclusively within the jurisdiction of such state, as shall also, all vessels bona fide, bound to, or from such state. 3. Each state shall have concurrent jurisdiction in the service of civil process, issued for the enforcement of any contract made, or wrong done or committed within such state ; and also for the service of criminal process for offences committed against such state. 4. The state of New- York shall exercise exclusive jurisdic- tion over the waters of the Hudson river and bay of New- York, in the enforcement and execution of her health laws, and all oth- er jurisdiction, power, and authority over the said waters, in eve- ry case not herein before stipulated; and the state of New- Jersey shall exercise exclusive jurisdiction over all the other wa- ters between the two states, in the enforcing and execution of her health laws, and all other jurisdiction, power, and authority, in every case not herein before stipulated. 5. The state of New-Jersey to relinquish all claims to Staten Island and the other islands in the waters between the two | stales now claimed and possessed by New-York. THIRD PROPOSITION ON THE PART OF NEW-YORK. ]. The inhabitants of New-Jersey, in common with the in- habitants of the state of New- York, shall enjoy the fisheries in that part of the Hudson river, which is east of the shore of New- 16 Jersey, and also in the waters between Staten Island and the New-Jersey shore ; but the state of New-Jersey shall have the right of regulating the fisheries on the west side of the said wa- ters, between Staten Island and New-Jersey, to be so regulated, however, as not to injpede or obstruct the free and safe naviga- tion of the said waters. 2. The state of New-Jersey shall enjoy and exercise exclu- sive jurisdiction on all the wharves and land, now made, or which may hereafter be made, on or adjoining the shore of New- Jersey, opposite the state of New-York, and also to low water mark along the whole of the said shore ; and civil process issu- ing out of any of the courts of said state, or from any magis- trate thereof duly authorized, may be served upon any person or persons indebted, or liable on any contracts made within the said state, or who may have committed any wrong therein, and which person or persons may be on board of any vessel fasten- ed to, or by the side of such wharves, or aground on said shore, provided that such person or persons, shall not then be under arrest, by virtue of any process or authority of the state of New- 1 orK. 3. The state of New-Jersey shall also have the right of serv- ing criminal process upon all the waters of the Hudson river, lying between the shores of New- York and New-Jersey, and upon the waters between the shores of Staten Island and New- Jersey, for crimes and offences committed upon the land, above the natural low water, on the shore of New-Jersey, or upon any wharf or land now made, or which may hereafter be made, on or adjoining the said shore ; such process not to be served upon any person or persons, on board of any vessel attached to, lying at, lading or unlading at or by any wharf, pier, or shore, in the stale of New-York, or anchored in any of said waters, for the purpose of lading or unlading as aforesaid, or who may then be under arrest, by virtue of process or authority of the stale of New-York. 4. The state of New-Jersey shall also have the right of serv'- ing process, issued in pursuance of the laws of that slate, upon all properly taken out of New-Jersey to evade due process of 17 law, in all places where tlie right to serve criminal process, issu- ed under the authority of the state of New-Jersey, is provided for by the foregoing article : provided that such property shall not have been seized or levied upon, under or by virtue of pro- cess, issued under the authority of the state of New- York, so as to render it subject to the exigency of such process, by vir- tue of such seizure, according to the laws of the state of New- York. 5. The state of New-York shall have the right to exercise all jurisdiction, power and authority, over the said waters, other than such as are herein secured to the state of New-Jersey. FOURTH PROPOSITION ON THE PART OF NEW-JERSEY. 1. The waters of the Hudson river and the other waters be- tween the two states, to be the boundary, and a common high- way for both parties. 2. Each state shall have the exclusive jurisdiction and regula- tion of wharves, docks and other improvements, made or to be made on its own shores, and of the fisheries adjacent to its shores : provided that the navigation be not obstructed or injured. All vessels fastened to, or aground on the shore of either state, shall be considered exclusively within the jurisdiction of such stale. 3. Each state shall have concurrent jurisdiction over the said waters, in the service of process issued for the enfo^ceju^^nt of any contract made, or wrong done or committed s^^^/ma/^ such state ; and also for the service of criminal process, for offences committed against such state above low water mark : provi- ded, that as to civil process for the enforcement of any such con- tract, the citizens of the said states of New- York and New- Jersey shall not be subject to arrest on the said waters, by pro- cess issuing from the courts of either state against the citizens of the other. 4. The state of New-Jersey shall have concurrent jurisdic- tion for all offences committed by her citizens on the waters of the Hudson adjacent lo New-Jersey ; and the state of New- York c 18 shall have concurrent jurisdiction for all offences committed by her citizens on the other waters between the two states, adjacent to the state of New-York. 5. The state of New-York shall exercise exclusive jurisdic- tion over the waters of the Hudson river and bay of New- York, in the enforcing and execution of her health laws, and all other jurisdiction, power and authority over the said waters, io every case not herein before stipulated : provided that the same shal' be in every respect, equal and reciprocal as to the two state? And the state of New-Jersey shall exercise exclusive jurisdic tion over all the other waters between the two states, in the en forcing and execution of her health lav\'s, and all other jurisdic- tion, power and authority over the said waters, in every case not herein before stipulated: provided that the said exclusive juris- diction, shall be in its exercise, in every respect equal and reci- procal as to the two stales. 6. The state of New-Jersey to relinquish all claims to Staten Island and the other islands in the waters between the two states, now claimed and possessed by New- York. FOURTH PROPOSITION ON THE PART OF NEW-YORK. 1. The state of New-Jersey shall have exclusive jurisdiction over all the waters on the west side of the channel between Sta- ten Island and New-Jersey, and on all the wharves, piers and land now made or to be made on or adjoining the shore of New- Jersey, opposite the state of New-York, and also to low water mark along the whole of said shore, and also on all vessels fas- tened to or by the side of any such wharf or pier, or aground on said shore : provided however, that the said vessels and their of- ficers, crews and passengers, and also the waters above men- tioned, and all vessels therein, with their officers, crews and pas- sengers, shrill be subject to the jurisdiction of New-York for the enforcing of such quarantine and health laws, and such laws re- lating to passengers as now exist, or may hereafter be passed under the authority of that state. 19 2. The state of New-Jersey shall have the right to serve ali civil process over all the waters between the shores of the two states, upon any person or persons domiciled in the said state of New-Jersey : provided such person or persons shall not then be on board of any vessel attached to, lying at, lading or unlading at or by any shore in the state of New-York, or any wharf or pier adjacent to such shore, or anchored in any of the said wa- ters, for the purpose of lading or unlading as aforesaid: and pro- vided alsp, that such person or persons shall not then be under arre3^l^5^i§%l/VB^HrV^ss or authority of the state of New-York. 3. The statV SflTew-Jersey shall also have the right of serv- ing criminal process wherever the right of serving civil process is provided for by the foregoing article, for all crimes and offences against the laws of said state, committed upon the land above the natural low water mark on the shore of said state, or in any place where the jurisdiction of said state is provided for in the first ar- ticle: provided the person or persons against whom such process shall have been issued, shall not be at the time of its service, un- der arrest by virtue of any process or authority of the state of New- York. 4. The state of New-Jersey shall also have the right of serv- ing process issued in pursuance of the laws of that state, upon all properly taken out of that state to evade due process of law, in all places where the right to serve civil process upon persons domiciled in said state is provided for in the said article: pro- vided that such property shall not have been seized or levied upon under or by virtue of process issued under the authority of the state of New-York, so as to render it subject to the ex- igency of such process, by virtue of such seizure, according to the laws of that state. 5. The state of New- York shall have the right to exercise all jurisdiction, power and authority over all the said waters other than such as are herein secured to the state of New-Jersey. 20 A. Letter from the New- Jersey^ to the JVeiv-York Commissioners. The undersigned, commissioners of the state of New-Jersey, in the present stage of the negotiation, beg leave expHcilly to state to the commissioners of the state of NeW-York, that the claims of New-Jersey, in the matters of limits and boundary, in difference with New-York, are as follows : 1. A i:ight of territory and jurisdiction to the middle of the river Hudson, and the narrows, agreeably to the true con54ruc- tion of the original grants, and the rigIus'"iti(yiii»Bw py the war of the revolution, and the treaty of peace, recognizing the in- dependence of the United Slates. 2. Staten Island, and the three Oyster Islands, expressly in- cluded within the territory of New-Jersey, as set forth in the aforesaid grants. 3. The waters between Staten Island and the main land, the same being altogether within the limits of New-Jersey. With the hope that some satisfactory arrangement might be made upon the basis of mutual accomraodation, the undersign- ed have not only refrained from exhibiting their claims, founded as they believe upon the most approved principles of law, but have explicitly offered to relinquish their right to Staten Island and the Oyster Islands, and also important rights in the waters of the Hudson, so as to ensure to the city of New-York the more effectual protection of her health and commerce. They indulged the expectation that the commissioners of New- York would propose some arrangement which would not be founded on principles inconsistent with any just title in New-Jersey, in the matters in controversy. They however, deeply regret, that all the propositions offered by the commissioners of New-York assume as a basis, the ownership of New-York to the waters between the states, and merely accord to New-Jersey, as favours, certain privileges which she now fully, and of right enjoys. Un- der these circumstances, the undersigned feel themselves com- pelled to state more formally, and in writing, that they cannot negotiate upon such a basis, nor can they advance farther upon 2i the principles of mutual concession and friendly adjustment. They therefore submit to the commissioners of New- York, the expediency of referring the decision of the controversy to some indifferent and impartial tribunal. And haveahe honour to be, with great respect, he. • RICHARD STOCKTON, JOHN RUTHERFURD, THEODORE FRELINGHUYSEN, JAMES PARKER, LUCIUS q C. ELMER. To John T. Irving, JVaihaniel Pitcher, Samuel A. Talcoit, Hermanus Bleecker, and Herman J. Red field, esquires- B. Letter from the New-York, to the JVeio-Jersey Commissioners. Dated 17th September, 1827. Gentlemen, The commissioners of New- York have the honour to acknow- ledge the receipt of a note from the commissioners of New-Jer- sey, of the 15th instant, in which the claims of the latter state are set forth as comprising a right of territory and jurisdiction to the middle of the river Hudson, and the narrows; a right of territory and jurisdiction over Staten Island and the three Oys- ter Islands, and also over all the waters between Staten Island and the main land. The commissioners on the part of the slate of New-York, from a knowledge of the claims which have been heretofore setup on the part of New-Jersey, have from the be- ginning of this negotiation, acted under a belief that the only mode of coming to an amicable arrangement of the matter iu controversy between the two states, was to proceed upon what was well expressed in your note, " the principles of mutual con- cession, and friendly adjustment," and that the views entertained by ourselves, and those which we suppose to be entertained by the commissioners of New-Jersey upon the strict legal question of right between the two governments were so totally at variance, 22 ibat no arrangement could be made upon such a basis. We have therefore in all the propositions submitted to the commissioners of New-Jersey, endeavoured to avoid any assertion of right on the part of New York, and to place the v?hole matter upon the footing of an amicable adjustment of the differences between the two states, which have heretofore produced inconveniences to both. And in those propositions it was certainly the intention of the commissioners on the part of this stale, to stipulate for the enjoyment by (he stale of New-Jersey, of rights within the territory of New-York, the granting of which should not be " founded upon principles inconsistent with any just title in New- Jersey." But it is true that we have ever had a regard to what we consider the territory and jurisdiction of our state, although we have sedulously endeavoured to avoid embarrassing the ne- gotiations between us, by any assertion of right incompatible with the claims of New-Jersey. If we have failed in those en- deavours, we are willing that the commissioners of New-Jersey shall so correct and modify the phraseology of our propositions as (o render them in this respect acceptable. At the same time however, we must take the liberty of say- ing that we did suppose ihat those propositions contained grants of privileges to New-Jersey, which she had never enjoyed, and could only have the right of enjoying by virtue of concessions from this state. A particular discussion of those privileges in the present stale of our negotiation, we do not think necessary or useful. But without going into an examination of the claims of New-Jersey to " territory and jurisdiction to the middle of the waters of tbe Hudson and the Narrows," the commissioners of New-York feel bound to say that they did seriously believe that the commissioners of New-Jersey would upon their own principles, consider the proposed stipulations allowing that state to serve criminal and civil process upon the waters east of what New-Jersey claims as their boundary line, as grants of new rights from the state of New-York. And as they had not under- stood that New-Jersey enjoyed or claimed such rights, they were not a little surprised to find that propositions granting those rights were considered by the commissioners on the part of that state, , 23 as merely according to New-Jersey as favours, certain privileges which she now fully and of right enjoys. The commissioners of New- York regret that the commission- ers of New-Jersey cannot " advance farther upon the principles of mutual concession and friendly adjustment," for it will be im- possible for us to negotiate upon a recognition of the rights of New-Jersey, as asserted by the commissioners in their note of Saturday. We think therefore that nothing now remains to be consider- ed, but the pi'oposition with which that note closes, submitting to us " the expediency of referring the decision of the contro- versy to some indifferent and impartial tribunal." Upon this sug- gestion we have again perused the act of our state constituting the board of commissioners; and although we find power to make an agreement with the commissioners of New-Jersey up- on the points in controversy, we do not see any authority to sub- mit the decision of such controversy to any other tribunal. There is however a general clause investing us with all pow- ers which had been given by New-Jersey to the commissioners on her part, and it becomes necessary therefore before discuss- ing this proposition, and in order to ascertain our own powers in relation to it, that we should inquire whether the commission- ers of New-Jersey are authorized by the laws of that state to submit the question between the two states to any other, and if so, to what other tribunal. We are gentlemen with respectful consideration, your obedient servants, JOHN T. IRVING, NATHANIEL PITCHER, SAMUEL A. TALCOTT, H. BLEECKER, HERMAN J. REDFIELD, To Richard Stockton, John Rutherfurd, Theodore Frdiiig- huysen, James Parker, L. Q. C. Elmer, esquires, Com- missioners. 24 C. Letter from the New- Jersey^ to the New-York Commissioners. Albany, September 17ih, 1827. Gentlemen, The commissioners of the state of New-Jersey have the ho- nour to acknowledge the receipt of a note from the commission- ers of New-York of this day, and beg leave in reply, to renew the expression of their regret that no amicable adjustment of the territorial disputes between the two states appears at present to be practicable. In explanation of the views we expressed of the propositions made by the commissioners of New-York, as to the extent of the privileges they accorded to New-Jersey, we would remark that those views resulted from a consideration of the privileges in their connexion. The proposed benefit of executing civil and criminal process on the Hudson, was extended to both sides of the river, impairing our right to serve process on our own wa- ters, and against our own citizens, and was so restricted in its terms, and so qualified in ils general operation on the east side of the Hudson, that we could not regard it as a distinct and valua- ble privilege. The suggestion as to the "expediency of referring the deci- sion of the controversy to some indiflerent and impartial tribu- naV' was not made by us, under the impression that the two boards could officially make it the subject of express convention and agreement. For the act authorizing the commission on the part of New-Jersey, confines our functions to the settlement of the line. But as an intimation of such a course was given by the New-York board at an early stage of our negotiation, and as New-Jersey has always been willing to submit her rights in ques- lion to such a tribunal, we presumed that as a measure of expe- diency, it might very properly by joint advisement, and the con- currence of the two boards, be made a fair matter of recom- mendation to their respective legislatures. We alluded particular- ly to the Supreme Court of the United States, as the tribunal to 25 whose consideration and judgment, wc confidently believe the slate of New-Jersey would submit the controversy. RICHyVRD STOCKTON, JOHN RUTHERFORD, THEODORE FRELINGHUYSEN, JAMES PARKER, LUCIUS q, C. ELMER. To John T. Irving, Kathaniel Pitcher, Samuel ♦^. Talcott, H. Bleecker, Herman J. Recffield, esquires. D. Letter from the J\'eio-York, to the JVew- Jersey Commissioners. Albany, September 17th, 1827. Gentlemen, In respect to your note of this evening, which we have had the honour to receive, and which suggests the expediency of submitting the matters in controversy between the two states to the decision of the Supreme Court of the United States, we beg leave respectfully to state, that although it was a subject of conversation between the members of the two boards, whether such a course might not become advisable in case of their dis- agreement, it was not suggested on the part of the commissioners of New-York, that we had the power to agree to such submis- sion, or that the act of appointing us required or would sanction a recommendation to our legislature to pass any other act upon the subject. Appointed ourselves especially for the purpose of adjusting with the commissioners on the part of New-Jersey, the ditTeren- ces between the two states, and having to our great regret failed to accomplish this desirable object, we think that it does not belong to us to point out to those, from whom we have derived our authority, the course which, under such circumstances it be* comes them to pursue. Such we would with all deference sug gest, might perhaps more properly be effected by a correspon- 26 uence between the executives of the two states, and by such recommendations as they might respectively make to the legis- latures of each. This we believe is the usual channel through which such re- commendations are made, and \^e legislature of the state we re- present would certainly receive a communication of that nature. with all that consideration and respect which is due to the state of New-Jersey. We are, gentlemen, with the most respectful consideration, your obedient servants, JOHN T. IRVING, NATHANIEL PITCHER, SAMUEL A. TALCOTT, H. BLEECKER, HERMAN J. REDFIELD. To Richard StocJdo7i, John Rutherfurd, Theodore Freling- huyseiij James Parker, Lucius Q. C, Elmer, esquires. Com missioners. The following facts and argument j in relation to the matters in controversy between JVew-Jersey and JVew- York, are submitted hy the Commissioners of Ntw-Jersey to the Legislature. The controversy between the states of New-Jer- sey and New- York, in regard to the eastern boun- dary of New -Jersey, naturally divides itself into two general heads. First. The right of New-Jersey in the Hudson river and the other dividing waters. Second. Her riijht to Staten Island. I. Or THE RIVER Hudson and the dividing waters. It is contended for New-Jersey, that the Hudson river and the other waters " leading unto'^ her territory, were conveyed to the proprietors of New-Jersey at least as early as the year 1682, for the purposes of "navigation, free trade, fishing, or otherwise," namely, for all other purposes to which such waters ought to be appropriated : and that this general proposition can be maintained, whether the grants under which she claims are considered merely as conveyances between individuals, and to be tested by the general rules of construction applicable to such instruments, or as grants of territory, jurisdiction, and govern- ment, made by a sovereign power for the purpose of creating a political state and constitution, and to be construed as such, ac- cording to the more liberal principles of the public law, called the law of nations. A concise view of the origin of the English title to this part of North America, will properly precede an examination of this assertion. Sebastian Cabot, a natural born "British subject, dis- covered the continent of North America in the year 1497, and coasted from Newfoundland to Cape Florida. Smith, the historian of New-Jersey, remarks, that from " this discovery and voyage the English have claimed the country ever since, by the well known jus gentium, which declares, that whatever waste or uncultivated country is discovered, it is the 28 right of that prince who has been at the charge of the discovery." Several futile attempts to settle the country had been made by the British government in early times. In 1584, queen Elizabeth granted to Sir Walter Raleigh all such countries in America as were not then possessed or inha- bited by christian people, under which grant a settlement was made in Virginia. In 1606, James I. granted a new patent of Virginia, which in- cluded within its limits New-England, New- York, New- Jersey, Pennsylvania, Dchnvare, and Maryland, the whole country then bearing the name of Virginia. Under this patent, a settlement was made, but its affairs were so mismanaged that the patent was declared forfeited on a quo warranto, after which the whole was re-annexed to the crown. The languishing condition of these settlements attempted by the English, induced the Dutch to set up a claim to that part of the country which now includes the stales of New-York and New-Jersey. Henry Hudson, an Englishman in the service of the States of Holland, was, in 1609, sent out by the Dutch In- dia Company on a voyage to discover a north-west passage to the East Indies. He touched at New-York, and sailed up the river, which was, after him, called the Hudson. The Dutch af- terwards made a settlement at New-York and in the adjacent parts of New-Jersey, and pretended that the whole territory be- longed to the West India Company, under the States General. They built a fort at New- York, and another on the Delaware, laid out a garden and furm at Horsimus, and sent out many ac- tual settlers from Holland, who took possession of large tracts of land in both states, as subjects of the States General. In the mean while, the civil war in England so engrossed the attention of the English, that the Dutch were permitted to retain their possession until after the restoration of king Charles II. After this event took place, the plan of asserting the English title to that part of the continent into which the Dutch had in- truded, was once again revived ; and that it might be regained and secured, and settled by English suhjecis upon a large scale, it was resolved by the king and his council lo create a princi- 29 pality in favour of the Duke of York, the king's only brother, and the heir apparent of the crown j and that, for the purpose of immediate colonization, the duke should convey that part of his domain which now constitutes the state of New- Jersey, to Lord Berkley and Sir George Carteret, two of the king's privy coun- cil. In pursuance of this great plan of colonization, the king granted all the country from Nova Scotia to Delaware bay to the duke, on the 20th March, iG64, and in June of the same year the duke conveyed New-Jersey to Berkley and Carteret. To make these grants efFeciual, and to dispossess the Dutch, who were considered as intruders, an armament had been pre- pared, and a fleet, with troops on board, sailed from England a few weeks after the grant to the duke, that is to say, on or about the 26th April, 1G64, a state of war not then existing between England and the States of Holland. This force arrived, and achieved the purpose for which it was fitted out, by dispossess- ing the Dutch, in the month of August of the same year, 1664^ and by putting the grantees, Carteret and Berkley, in posses- sion of New-Jersey. As soon as the news of the surrender of the country by the Dutch arrived in England, the proprietors set about their great work of settling it by English adventurers. They had not been idle from the time they received their grant, but had well considered and matured their plan. On the 10th February, 1664, (old style) in less than a year from the date of the king's grant to the duke, they published to the people of England the principles upon which they were willing to plant and govern their intended colony. On that day, under the de- signation of grants and concessions, they published their first state paper, offering to the settlers a free plan of government, to consist of a legislature composed of a governor, council, and as- sembly, to be composed of delegates to be chosen annually by the people; a judiciary department suited to the infant state of the colony; a militia for public defence, and the general rules to be observed in the sale, purchase, and laying off of lands. This paper is a written conslimtion, and has ingrafteil into it the most approved principles of English liberty. Its sole object was to invite and encourage the seitieraent of the colony, by the 30 offer of a free conslituiion, securing to the adventurers the bless- ing of civil and religious liberty. In truth it is the same substan- tially as that under which New-Jersey lived until the revolution: nay, it may be further said, that the present constitution of the state differs from it no more than was naturally consequent on independence of the crown of England. On the same day, 10th February, 1664, the proprietors appointed Philip Carteret their first governor. This review of the early history of the state clearly evinces that these grants or conveyances were all made with the intent, and for the purpose of settling a new colony, of creating a new state. The duke, being the owner of a domain extending far to the east and north, grants New-Jersey to Berkley and Carteret, that they ^^ might plant a colony.''^ He reserves New- York to himself, that he or his immediate agents might not only watch over and keep in subjection the foreigners who had settled the country, but mix them up with a much larger number of English subjects, and thus lay the foundation of another distinct sove- reignty, to be governed by his authority under the protection of the crown of England. The result is, that these grants are not to be considered as merely muniments of title, as private deeds between individuals, but as grants of territory, jurisdiction, and government, intended to c?ill into existence a new people, and to create a new political state. They are all in pari materiaj parts of the same transac- tion ; they have the same objects; they deal with matters of state and sovereignty; tliey take their origin from the jus gen" (ium, and must especially now upon a controversy of limits and jurisdiction between two sovereign states, be tested by the great principles of public law recognized by all civilized nations in the settlement of such disputes. The first grant of the king to the duke bears date on the 12th March, 1664. It grants to the duke, liis heirs, and assigns for ever inter alia *' the Hudson river" and all the lands from the west side of Connecticut, to the east side of Delaware bay," including the states of New-York and New-Jersey. This territory is to be holden of the crown of England, in free and common soccage. 31 " It also gives and grants to the duke, his heirs, deputies, agents, commissioners, and assigns full and absolute power and authority" to correct, punish, pardon, govern, and " rule ac- cording to such laws, orders, Jkc. as the duke or his assigns shall establish; and in default thereof, in case of necessity according to the good discretion of his deputies or assigns, as well in causes and matters capital and criminal as civil, both marine and others, so as the said statutes and proceedings be not contrary to, but as near as may be agreeable to the laws of England, saving also an appeal to the king on any judgment or sentence," &c. I^ adds also the right to bring over British subjects, to exer- cise martial law, to make defensive war, and regulate commerce; in fine, as to this territory, it invests the duke and his assigns with all the regalia of the crown. It createafa sub-royalty in favour of the duke, his heirs, and assigns, subject only to the general lie of allegiance to kings of England. The right of the king to make such a grant to a subject can- not be brought into debate. The kings of England, prior to the revolution of 1668, claim- ed and exercised that right even in England, and without the concurrence of parliament. Such were the counties palatine of Chester, Durham, and Lancaster, granted in ancient times to distinguished individuals.* They were called counties palatine, from the words pal atio re- gis, (palace of the king,) and Judge Blackstone says that the owners had "jura regalia'^ as fully as the king hath in his pa- lace. But as to newly discovered countries acquired by conquest, or driving out the natives by British subjects, these were espe- cially assigned to the king as his prerogative, who gave to the settlers such laws and constitutions as he pleased. f Speaking of the American colonies, Blackstone says, '* they were governed either by royal or proprietary governments, which latter were granted out by the crown to individuals, in the nature of feudal principalities, with all the inferior regalities of subordinate pow- ers of lesiislation which belonged to counties palatine^X ■ 1 Black. Com. H6 17. t Ibid. 107. % Ibid. 108. 32 Lord Mansfield on our subject says, " after the conquest of New-York, in which most of the old Dutch inhabitants remain- ed, king Charles II. changed the form of their constitution and political government, by granting it to the Duke of York, to be held of his crown under all the regulations contained in his pa- tent* The learned commentator Blackstone, calls the governments thus created "subordinate royalties," he considers the grams as legal, and v^esting in the grantees all the powers enumerated. In the case of Hall and Campbell, Lord Mansfield considers the king as having acquired New-York by conquest from the Dutch, and lays down the law thus, " the laws of the conquered country remain in force until they are altered by the conqueror." The Dutch laws would therefore have privilege, but he had taken care to " change their constitution and poliiical govern- ment" by the grant to the duke. The grant of the duke to Berk- ley and Carteret, was to carry into effect such change, as far as related to New-Jersey, part of which had been actually coloni- zed by the Dutch, and the whole of which was claimed by them. The proprietors were substituted in the place of the duke, ac- cording to the stipulations of the patent, and became ihe sub-so- vereigns of the territory as fully as the duke would have been, had he made no grant. And so ihey remained until they surren dered the government to queen Anne. The Duke of York being thus prince, owner, and legislator, determined to divide his vast domain, to create a new state in- dependent of him, to be planted by others with British subjects and adventurers, to whfch he gave the name of New-Jersey. This is the description of the country granted to Lord Berk- ley and Sir George Carteret, " all that part of land adjacent to New-England, and lying and being to the westivard of Long Is- land and Manhatten Island, and bounded on the east by the main sea and Hudson's river, and hath upon the west Delaware bay or river, and extends the southward to the main ocean as far as Cape May, at the mouth of Delaware bay, and to the northward as far as the northermost of the said bay or river Delaware, j " Cowper's Rep. 211, Hall r. Campbell. 33 which is 41 degrees 40 minutes of latitude, and crosses thence in astrai§;ht line to the Hudson river, in 41 degrees of latitude, to be called by the name of Nova Csesarea, or Nevv-Jorsey, " to- gether with ail the rivers, mines, minerals, woods, 6sliings, fowl- ings, Sic. and other royalties, profits, &c. to the same belonging, in as full and ample a manner as the same are granted to the Duke of York. Upon the making of this grant, the proprietors took possession. The concessions, or constitution of February 1664, before mentioned, induced many lo emigrate from Eng- land. They were published also in New-England, and the liberal plan of government established, induced many settlers to remove from those parts.* Philip Carteret came over in 1665, and as early as the 30ih May, 1668, a legislative body consisting of a governor, council, and house of burgesses, elected by the peo- ple, met in general assembly. In 1673, the Dutch re-conquered the country, but shortly af- ter it was restored, and finally secured to the English by the treaty of peace between Great Britain and the States of Holland. These transactions it was supposed, made it proper that new grants should be made to the duke, and to the proprietors, and accordingly in 1674, the king again granted the same domain to the duke ; and he also granted to Sir George Carteret the east- ern part of New-Jersey; and afterwards the western part to the grantees of Lord Berkley, in the same terms, and with the same powers as are used and conveyed by the former. Nevertheless, the claim of the proprietors to the rights of government were still disputed. These powers had been expressly granted by the king to the Duke, as has been already seen ; but in his grants to the proprietors are to be found only the general description of " rivers, mines, minerals, &;c. and other royalties," which might be satisfied without construing them to include the great powers of political government. Sir Edmund Andross, the duke's go- vernor of New-York, denied the right of the proprietors in this respect, and went so far in the year 1680, as to send an armed force to Elizabeth-Town, which made Philip Carieret the pro- prietary governor a prisoner, and brought him forcibly to New- * Smith's History 67. 34 York, where he was indicted and tried for usurping the king's government in New- Jersey. He was acquitted by the jury, not- withstanding all the influence of the governor and the court was employed to procure his conviction, and the conduct and pro- ceedings of Andross were censured and disavowed in England by the king and the duke. Meanwhile, a partition of New-Jersey had taken place, and East-Jersey had been assigned to Sir George Carteret, and West Jersey to the grantees of Lord Berkley. Conveyances had been made of East-Jersey to twenty-four persons, afterwards called the twenty-four proprietors. To free the proprietary go- vernor from all the doubts arising out of these events, to explain the domain and powers intended to be conveyed by the former grants, which are recited, the Duke of York made a confirma- tory grant in the year 1682, to the eastern proprietors. By it he alters the phraseology of the first grants in regard to rivers, which merely included rivers as appurtenances, in these general terms, " together with all rivers, &ic." which might be satisfied by in- ternal rivers. But this additional confirmatory grant adds this important section, not to be found in the former grants, namely, " and also all islands, forts, &ic. whatever, to the same belonging. And also the free use of all bays, rivers, and waters, leading unto, or lying between the said premises, for navigation, free trade, fshing, or othenoise.'^ " And for the better enabling the grantees to improve and plant the said piemhes with peopZe, and to exercise all necessa- ry government there, whereby the said premises may be the bet- ter improved, and made more useful to them, their heirs and as- signs, he gives, grants and transfers to them, their heirs and as- signs, proprietors of the said province of East New-Jersey, for the lime bemg, all and every such and the same powers, autho- rities, jurisdictions, governments, and all matters and things what- soever, which by the said letters patent were granted to the Duke of York," to be exercised as fully, and to all intents and purposes, as the duke might have done. This last grant is a public and solemn act, whereby a former sovereign grants and confirms to a stale already in existence, and 35 in actual possession, all the rights remaining in him, or wliicli might be supposed to remain by reason of the inaccuracy of for- mer grants ; and it is entitled to the benefit of the same rules of construction as would be applied to a treaty of limits, boundary and jurisdiction between independent states. It is true these grants and conveyances are not in the form ol written conventions or treaties, but appear in the shape of grants or deeds of land, to take eflect under the statute of uses. The duke's first grant to Berkley and Carteret, is by lease and re- lease, and refers expressly to the statute of uses for its efficacy ; and the deed of confirmation of 1682, is thrown into the shape of a deed of bargain and sale, having a pecuniary consideration, and all the words commonly employed in such conveyances. It will therefore be proper to inquire and consider what construction the common law will give to the terms of this grant. The operative words are these, " all that tract of land adjacent to New England, and lying and being to the westward of Long Island, and Manhattan Island, bounded on the east, part by the main sea, and part by Hudson's river." The rule is, that the construction must be favorable to the grantee, and against the grantor.* This river and all the dividing waters are notoriously to the westward of Long Island, and Manhattan Island, and therefore are within the descriptive words of the grant. The land to the westward of these islands passed by express words. This term is of great extent in its legal operation, including all above, and all below the soil, and therefore embraces all the lands to the westward covered by water. Unless the words de- scribing the land granted are rejected, New-Jersey must begin where those islands end. Nor ought they to be departed from in favour of the grantor, because he has added a general boundary, calculated to make it vague and uncertain. If a conflict exists between a particular description, and a general boundary, the latter ought to yield to the former, for it is an established rule in the construction of deeds, that if the granting words are suffi- cient to ascertain the lands intended to be conveyed, they shall pass, although they do not correspond to some of the particulars * 3 Johns Rep, 375. 36 of the description.* Then as no doubt can exist of the intention to pass all the lands to the west of these two islands, the addi- tional description which makes the eastern boundary to be the main sea and the Hudson, ought not to lessen or impair the be- nefits of the grant in favour of the grantor, and against the grantees. But if the words of description and boundary can be recon- ciled, it is proper so to do. This may be effected by construing the eastern boundary on the Hudson, to mean that part of the Hudson which bounds the islands to the eastward of the river, then the eastern boundary of New-Jersey would be the eastj and not the west side of the" river, and all the words descriptive of the premises will be fully satisfied. This it is conceived was the true legal construction of these grants when they were made. But if it should be admitted that we must noto be contented with a more restricted boundary, flowing from a construction favour- able to the grantor, and against the grantees, the question will be, what land did pass, and what estate and right in these waters as connected with the land. Admitting that the river is our east- ern boundary, yet not only is the land quite up to the river grant- ed, but also the " free use of all bays, rivers, and waters, leading unto, or lying between the said premises, for navigation, free . trade, fishing, or otherwise." These words convey not only the ^_. fee simple of the lands up to the very river, but also a right anc? es^ai^e in fAe twaiers," to secure to the proprietors the fran- chises of navigation, free trade, fishing, and all other liberties and privileges of the like nature, so as they might be held and enjoyed, not only without restraint, interruption, or regulation, but as of their own proper estate, wholly independent of the duke or his substitutes. When any thing is granted, "all the means to attain it, and all the fruits and effects of it are granted also, and shall pass inclu- sive together with the thing, by the grant of the thing itself." Now the things granted are not only the land, but the " free use of the waters for navigation, free trade, fishing and otherwise."! Water, strictly speaking, is not the subject of grant, for it is a •4 Mass. Rep 196 7 Johns. Rep 217. 6Cranch,237. I Shop. Touch. 85. Co. Lilt. 56 2 Black. Com. 36. 37 "moveable, wandering thing,"* and is only the subject of a tem- porary, transient, usufructory property. Hence no action will lie to recover water, even in a pond, watercourse, or rivulet, "but it must be for the land that lies at the bottom.'' By a grant then of the use of all the waters for the purposes of navigation, free trade, and fishing, the waters, or the soil under the waters must pass, so far as at least to secure to the grantees, " the fruits and effects" of the things so granted, and to protect them in the full and uninterrupted enjoyment thereof. 1. It conveys a full right of navigation over all the waters. This means something more than the common right to navigate the sea, its arms and branches. Such a general right needs no grant to pass it'; it belongs to the whole human race by the law of nature, and is so recognized by the law of nations. It means an unfettered right of navigation to be secured to the grantees, their heirs and assig-is, not subject to restriction, regulation, or taxation by a foreign legislature, or a foreign corporation. But if New-Jersey has no property in these waters, then might New- York, by undue and severe regulations, or extravagant duties, impair, or even destroy this important franchise, and New- Jer- sey would be a mere tenant at will to her powerful neighbour. 2. " Free trade." How shall the grant of the use of these wa- ters for free trade enure .'' It conveys these waters for the impor- tant purposes of a free and independent commerce, to and frotn our shores ; and all the incidents of such a commerce, such as the right of building wharves and storehouses upon the rivers, and on the sides thereof, from whence such commerce is to be car- ried on, pass with it. 3. "For fishing." This is not a mere recognition of the gene- ral right of common fishery, which js claimed by the great mass of the people, in virtue of the common law ; hut a pardcvlaT right of fishery is conveyed to the grantees, their heirs and as- signs, in and upon these waters, and consequently an estate in these waters, so far as is necessary to secure this right. To this grant is also annexed the powers of government, so that the right to regulate fisheries by legislative acts also resulted to New-Jer- "" 2 Black. 18. 38 sey. But if New-Jersey has no right or liile to the river, tlien none of her people can own or possess fisheries adjoining their own farms, nor could the state claim them, or even regulate them by law. New-Jersey and her people are all dependant on New- York for the enjoyment of these granted rights. And what is the construction which the law will put on the words " or otherwise" ? Are they to be rejected f Were they in- serted through ignorance or haste ? Not so : all these patents, grants, and conveyances were drawn with the utmost care and precision, under the direction of the law officers of the crown. Every word was weighed, its legal interpretation understood, and its office assigned. These superadded words were intended to embrace any reasonable rights in the waters, which, though they might not be directly within the strict interpretation of the preceding terms, (navigation, free trade, or fishing) were still of the same nature and character, and within the same reason ; and all such were intended to be granted. As this instrument also conveyed the regalia, right of govern- ment, and jurisdiction to the proprietors, that jurisdiction ex- tended not only over the lauds which formed the territory, but also over all and every matter or privilege conveyed by it, so far as was necessary to its full and complete protection. After this grant, it was not competent for the duke to exercise a jurisdic- tion, or permit others to exercise it, which might impair or de- stroy the rights thus granted away. But to convey to his colony of New-York an absolute right to the waters, or to extend their jurisdiction over the whole river, would at once impair the grant, by subjecting the navigation, trade, and fisheries of New-Jersey to the legislation of New-York. The duke himself could not lawfully have exercised such authority, much less could his agents, or the members of the colonial government of New- York established by him. The truth is, that after this grant of 1682, no absolute property in these waters could remain in the duke or his colony. Dr. Rutherforth, vol. i. p. 72, of his treatise on natural law, speaking of an original owner, says, *' if any person besides himself may lawfully claim to use what belongs to him, he (the original owner) cannot have the full and free use of it." 39 It operates as a conveyance and limitation of his riglit. If it be asked, what is the extent of these water rights of New-Jersey ; whether they extend over the whole or what part of the river j and whether they are exclusive or concurrent in regard to New- York ; tiie answer is, that this must depend on the subject matter, the nature, and character of each of these privileges. The first, the right of *' navigation," is co-extensive v;iili the waters, but in its nature is not exclusive, because it belongs to the human race; but New- York has no right to regulate it against New-Jersey while her citizens are on the waters, for New-Jersey has the right to navigate all the waters by prior grant from the owner of the river. Hence it was that New-Jersey has asserted this right by statute, as often as the subject has been brought up. By the act of November 10, 1804, to incorporate the Associates of the Jersey Company, sec. 3, it is enacted, that they shall have the privilege of ereciing or building docks, wharves, and piers in the Hudson river and bays, as far as they may deem it necessary* The act of 25th January, 181 1, has this recital: " Whereas the state of New- York do unjustly claim a jurisdiction exclusively of the state of New-Jersey over all the waters between the shores of the two stales; and whereas tlie citizens of New-Jersey have a full and equal right to navigate, and to have and use vessels or boats upon all the waters lying between the states of New-Jersey and New-York, in all cases whatsoever not prohibited by the constitution or any law of the United States."f The.same princi- ple is uniformly asserted in all the statutes which have been passed on this subject. New-Jersey, from its first settlement, has been in possession of and has used all these waters, as belong- ing to her of right, for the purposes mentioned in the grant; and as long as chartered rights and solemn conveyances stand for any thing she must be considered as well warranted in makine; such a claim. The use of the waters for " free trade," expressly granted, could not be satisfied or secured to New- Jersey with- out the right of making wharves and erecting storehouses into and upon these waters, nor without a jurisdiction at least to the middle of the river, for the protection of this properly, and of " Bloom. Ed. 128. ^ R»v. T,aws517 S. 40 our citizen! enga2;ed in commerce, their vessels, boats, and ships- This right of jurisdiction has also been expressly asserted by the statute establishing the boundaries of the county of Bergen. In the opinion of Judge Washington (as we shall hereafter shew) this granted use, followed up by actual occupation, has now ri- pened into a right of property to at least one half of the waters, because on any other principle we are at the mercy of New- York. If she has both ownership and jurisdiction up to our very shores or wharves, she might have destroyed at any time this granted " free trade" by her legislation, by exacting heavy im- posts; by imposing duties for her own benefit upon all vessels going out or coming into our ports; by the creation of monopo- lies in favour of her own citizens, or by any other vexatious ex- actions or restrictions. AH this she might have done from the earliest times until the adoption of the present constitution of the United States. This great national charter, and the indepen- dence and intelligence of the judiciary department, has recently been found to afford a substantial protection ; but the necessity of recurring to it, furnishes a striking illustration of the .condi- tion to which we might have been reduced, and may yet be re- duced in matters not within the scope of that constitution, if the high and unjust pretensions of New-York should be silently ac- quiesced in by New-Jersey. To give effect to these grants, we must go back to the times when they were made. AH the pro- perty, rights, privileges, and consequent jurisdiction which pass- ed when the conveyances were made, siill remain, unless they have been surrendered. The constitution is a check upon New- York, but affords no aid in the construction of these instruments. Such a construction ought to be made now, as would have effec- tually secured to New-Jersey all the stipulated privileges at the time of the grants, and from that time to this, for on the faith of these the first colonists crossed the sea and came into the wil- derness; the public faith was pledged to them in the grants and concessions that they should participate and enjoy the full bene- fit of the great waters leading unto the territory, for all appro- priate purposes. They and their posterity could only be secured in these most important rights, by a liberal construction accor- 41 ding to ihe approved principles of public law, and the true ui- terest and meaning of all the parties to this interesting transac-^ lion at the time. Hitherto we have considered the grants of the duke of York to the proprietors, and particularly thegreat confirmatory instru- ment of 1682, as private con 3P ' m fmmlt,to be construed by the rules adopted in the construction of deeds by the common law. But this is a narrow and confined view of the subject, and neither so correct or just as that which we shall now take. In the historical outline of these transactions which we have alrea- dy traced, it is manifest that the grants of the king to the duke, and of the duke to the first proprietors, and the concessions or constitution offered by the latter to enable them to " plant the colony with people," are to be considered as parts of the same transaction, and all intended to promote the colonization and settlement of the wilderness in America. They constitute a series of state papers. The first creates a vice royal principality in the person of the duke, to whom is conveyed the regalia of the crown in respect to this territory. The others divide off that part called New-Jersey from the rest, for the express purpose of cre- ating a new state or colony independent of the duke, with a so- lemn investment of all the powers of government, and subject only to a general allegiance to the crown of England. Between the two parts a great river or arm of the sea runs; it divides the one from the other, and is not only the natural boundary between them, but also the conventional boundary contemplated by the sovereign and expressly designated by his grants. The country was acquired by the British monarch under the jus gentium, or the laws of nations. The instruments dividing and parcelling it out among others, for the purpose of creating new colonies or states, partake more of the nature of public conventions or trea- ties than of private conveyances; and in questions of boundary and limits, they should be tested by the same law, which is no- thing more than the application of these principles of justice and reason, to the subject which has received the sanction of the whole civilized world. To construe these solemn instruments now, otherwise than to effectuate the intent of the parties upon the F 42 iijost liberal principles, and in favour of the colonists, would be a manifest breach of public faith, as we have already shewn. This great natural boundary between New-York and New-Jer- sey, was established with a view to public convenience, and so far from any intention to exclude New-Jersey from an equal , participation with New^Xi0*4{v»H> the benefits of the dividing wa- ters, the reverse is apparent on the face of the record which se- cured to us at least the use thereof, for all the purposes of " na- vigation, free trade, and fishing, or otherwise." And what other or different use of the waters, it may be asked, could remain or re^ suit to New-York ? In the case of Handley's lessee against Anthony,* the Supreme Court of the United States adopts one position. These are the words of C. J. Marshall, "in great questions which concern the boundary of states, where great natural boundaries are esta- blished in general terms, with a view to public convenience and the avoidance of controversy, we think the great object where ii can be distinctly perceived, ought not to be defeated by these technical perplexities which may sometimes influence contracts between individuals." If therefore the rules of the common law as applied to these instruments, would exclude New-Jersey fronri the dividing waters, and confine her either to high or low water mark on her own shores, (which however we have denied to b^, true,) still we may claim it by the more liberal rules of national law. Adopting the rule of this law as to river boundaries, the couri says, " when a great river is the boundary between two nations or states, if the original property is in neither, and there 15 no convention respecting it, each extends to the middle of the liver, "f In our case the original property was in the Duke of York. He, through the agency of his grantees, planted a colony on the west side of the Hudson, and another on the east side. The ri- ver is the boundary he gives; each then extends to the middle of the river. We shew a convention, an agreement which accords to New- " 5 Crancb, 382. 1 Ibid. 379. 43 Jersey the unqualified use of ihe river, for all the purposes of " navigation, commerce , fishing, or otherivise.^^ There is no such convention to be seen in favour of New- York ; yet does she claim the entire ownership to the exclusion of New-Jersey. If the colony of New-York succeeded to all the remaining domain of the duke, (for which she can shew no tide,) could she, as representing the duke, exclude New- Jersey in the face of his own solemn conveyance and convention ? In a political view, the rights claimed by New-Jersey were essential to her safety, and even lo her existence as a slate. How was her eastern mari- time frontier to be defended against an enemy in time of war, without the right to construct works and build forts, which it might be expedient and necessary lo run out into the water by artificial means? Must she ask permission first from her power- ful neighbour ? Until the constitution of the United States pro- vided for the public defence, New- Jersey might have found her- self dependant on her own exertions in this vital concern. The rules laid down by the Supreme Court of the United States, are taken from Vattel, lib. i. ch. 22. In section 2G6 of that chapter we find this rule, speaking of a river boundary he says, "if neither of the two nations near the river can prove that it first setUed in those countries, it is sup- posed that they both came there at the same lime, and in this case the dominion of each will extend to the middle of the river J'^ New-York could never pretend to any thing more ihan a si- multaneous colonization with New-Jersey. Admitting that the Dutch were the first who actually planted a colony in these parts, yet that colony extended over to New- Jersey. The eastern part of New-Jersey was setUed by the Dutch, at the same lime that they fixed themselves in New- York, and both parts were under the same government. This settlement, however, considered as a political state, was extinguished and destroyed by force of arms. New-Jersey was actually conveyed away by the duke, and divided off into a separate colony in June, 1664, when the Dutch were in possession, and wJien the colony of New- York did not exist ; so that New-Jersey seems to be entitled to all the benefit 44 which would accrue from prior possession, colonization, and government, against the colony or government of New-York. Again, the same author {J^uitel, lib. i. ch. 22. sec. 266) lays down this principle, " if a nation fixing itself on a river has made any use of the river for navigation or fishing, it is pre- sumed (by the law,) with the greater certainty that it has resolved to appropriate the river to itself" If such be the rule in respect to an unappropriated river, a fortiori must it be so, when the owner of the river expressly grants the vse of the river to a colony emigrating thither, for the purposes of navigation, com- merce, or fishing. Water is not susceptible of any other owner- ship than for these purposes and their incidents, and a grant to a colony /or such uses carries with it both property and jurisdiction. This reasoning is adopted by Judge Washington, and applied to this very subject, as will be hereafter shewn. From all which it results, that by force of the grants and conventions made be- tween the Duke of York and the proprietors, New-Jersey has a river boundary similar to that wkich remained for New -York, and also a property in the water, for the uses and purposes ex- pressed, namely, of navigation, free trade, fishing, and for all other uses and purposes of the like nature and character, found- ed upon the most approved rules and principles of the jus pub- licum, by which the whole was originally acquired ; and that these rights must be extended at least to the middle of the ri- vers and waters. Every principle of public convenience, of jus- tice and of reason seems to unite in the conclusion, that when two colonies are placed on each side of a great river, the river and other waters should be divided between them, in property and jurisdiction, and that each have a right over the whole for the purpose of navigation, to which they have a common title through him who made the water and the dry land for the use and benefit of mankind. Vattel, as to jurisdiction, in the same chapter says, " the em- pire and jurisdiction over lakes and rivers, is subject to the same rules as property, in all the cases we have examined. Each state has naturally a jurisdiction over a part, or over the whole."* • Vattel, lib. i. chap. 22. sec. 278. 45 3. But if the title of New-Jersey to the properly of the di- viding waters on her own shores, adjilum aquce, cannot be sus- tained upon the reasoning before submitted, there still remains a ground which conducts us to the same result, and appears to be conclusive. The grant of the king to the duke is not only of the whole country east, and south, and west of the Hudson, but of the ri- ver Hudson itself in terms, and of all other rivers, bays, and wa- ters appertaining to the granted territory. That the king had a right to grant these waters, together with the powers of govern- ment and other regalia of the crown of England, and annex them to the principality granted to the duke in America, was never doubted in England at the time, nor in America ; but on the contrary, the grant, together with all that it purports to con- vey, was repeatedly, and by the most deliberate acts confirmed by the kings of England, and all our titles in both states are de- rived from this patent. But if a doubt upon this point could be raised by New-York, the result will be tiie same. The duke succeeded to the crown of England in the year 1685. If those waters did not pass to him by the grant of king Charles his brother, they remained in the croion of England, and descended therewith to the duke. If they did pass to the duke, they became re-annexed to the crown by his accession thereto- These and all the other subordinate regalia of the duke were merged by that event in the supreme royalty over all the realm ol England and her foreign plantations which fell to him by here- ditary succession and descent. By the common law of England, the king, jure corona;, is the owner of the shores of the sea, and of all rivers, bays, and wa- ters in which the tide ebbs and flows.* The state of New- York can have no title nor permanent jurisdiction over these waters, unless she can produce'a grant from the crown of England, conveying them to the colony of New-York or some other grantee. No such conveyance or grant can be shewn, be- cause none ever existed. It was never the intention of the kings of England, after these waters had become re-annexed to the Davis' Rep. 152-5. Harg. L. T. 10, 11. 6 Com, Dig. title Prerogative 65. 46 oiown, to grant them either to individuals or to corporations. The country was so rapidly growing into political consequence, that the impropriety of making any further grants of the great rivers and arms of the sea became palpable and self-evident. That the duke never granted the territory of New-York, as he did that of New-Jersey, is a fact not to be disputed. He re- tained it, and governed it by his governors, who were his depu- ties and lieutenants. All the ancient grants and patents made while he was duke or king to individuals, or by the colonial go- vernment established by him, are limited to low water mark on their own shores. No grant or patent extending farther into the river has been shewn, and it is confidently believed that none such exists. The public acts done soon after the establishment of the English title, when the rights of all parties were well known, and the intention of the grants must have been fully as- certained, set up no pretension of ownership to the waters in controversy on the contrary they clearly demonstrate that in those days the colony of New-York made no such claim. If that colony had a good title to those waters, what more pro- per occasions for asserting it could have occurred than when the first charter was granted to the city of New- York, and when their counties were laid out upon those waters, from that city up to Albany along the Hudson.'^ The first charter to the city was granted in the year 1686, the year after the duke had become king of England. It gives the city boundary, and assigns to it "all Manhattan Island, and extends it in and upon " all rivers, rivulets, creeks, waters, watercourses" as far as low water mark, that is to say, low water mark on their own shores. In 1708, another charter was granted, the object of which seems to have been, to take in "the vacant and unappropiiated land on Long Island from high water mark to low water mark, fronting the said city." It meddles not with the dividing waters. As early as 1683, an act or ordinance had passed laying oft' several counties, and ascertaining their respective boundaries. But the settlement of the country had been so rapid, that in 3691 it was found necessary to revise this act, and establish the county boundaries by an act of the colonial legislature. This 47 being a revised statute, was unquestionably well considered, and therefore is of great weight, for if in the infancy of the colony, when this matter was comparatively of small importance, any mistake had been committed to the prejudice of the just claims of New- York, it would have then most certainly have been cor- rected: yet the county boundaries, then again a second time prescribed, are all based upon the principle, that New-York had no claim to the waters on the New-Jersey side. In this statute,* the city and county of New-York are located. The city is declared to contain Manhattan's Island, Manning's Island, the two Barn Islands, and the three Oyster Islands, "to be called the city of New-York, and the rest of the islands, the county of New-York." The city and county of New-York are thus placed on their own side of the waters. But if the legisla- ture of New-York had then supposed that the claim now set up against New-Jersey was valid, would it not then have extended the boundaries of the city and county to the west side of the Hudson ? So the counties of West Chester and Dutchess, running from the county of New-York, up the river towards Albany, are ex- pressly located on the east side of the Hudson. But when they get up beyond the north boundary line be- tween the two colonies, from the Delaware to the Hudson, namely, when they had a right to pass over to the west side of the Hudson, then, and not till then, do they attempt to lay out counties on the west side of the river. The statute declares the county of Orange to begin on the New-Jersey line, " on the west side of the Hudson, and to ex- tend to Murderer's creek, and westward, into the woods, as far as Delaware river." • So the county of Ulster is laid ofF on " the west side of the river from Murderer's creek, near the high lands, to Sawyer's creek." And the county of Albany is to extend, on " the west side of the Hudson, to the outmost end of Saratoga." This public sta- * Smith's and Livingston's Ed. N. Y. Laws, 6, 7, title City ami County of New- York. 48 tute is decisive of the opinion then entertained of the true boun- dary of the province of New-York. It is a legislative declaration — a public, contemporaneous exposition, made by the king's re- presentative and the colonial legislature, upon the very point in controversy ; proving beyond all doubt, that when this law was enacted, New-York made no claim to the ownership of these di- viding waters. This statute is taken from the edition of New-York Laws published in 1753, by Chief Justice Smith and the late Governor Livingston, then men of eminence at the bar of New-York. The first gentleman was the celebrated William Smith, after- wards chief justice, under the king, of New-York and of Canada, The standing and exalted character of Governor Livingston are matters of history in New-Jersey. It never could have occurred to them, that so important a right had been relinquished by the province of New-York, or they would have pointed it out. That no such opinion was entertained by those great men is manifest. Shortly after the publication of these laws, the same Mr. Smith also published a history of New-York, that is to say, in 1756. Not only in his character of revisor of the laws, but especially as the writer of a history of the colony, from its first settlement, he must have carefully examined all the existing grants, patents, and documents in relation to the territorial boundary of the coun- try he was about to describe; and these are his words of descrip- tion — " The province of New-York at present contains Long Island, Staten Island, and the lands on the east side of Hudson's river to the bounds of Connecticut." This is a very cautiously worded definition of boundary. The significant words " at pre- senf" were probably introduced because he intended to include Staten Island, which the fearned historian well knew was not anciently or rightfully a part of New-York, but had been gained by usurpation; and he probably supposed, by long possession, might then be called a part of New- York. But if he had enter- tained the slightest opinion, that the province whose history he was writing, and whose territorial limits he was describing, in- cluded the whole of the great river Hudson over to high or low water mark on the western side, and the bay of New- York and 49 all the rest of the dividing waters, would he have committed against New-York so gross and injurious an error as to limit her to the eastern side of the Hudson and be silent as to the owner- ship of these important waters? There is every reason to believe that he would not. The truth is, that until a whole century had passed away, no attempt was made to extend the counties of New-York over to the west side of the Hudson, south of the north partition line. It seems that in the year 1768, the legisla- ture of New-York again took up the location of their counties, and made a sort of feeble conditional assertion of right, by new modelling West Chester, and adding to it all that part of the river Hudson which adjoins the county of West Chester, "and is to the southivnrd of the county of Orange, or so much as is in- cluded in this province.'''' This must now be regarded as a dis- guised entering wedge, which then perhaps excited but little at- tention, but it fully proves that even then, in 1768, the legislature of New-York was not prepared to take the bold ground which they have since occupied. They do not hazard the direct asser- tion that the west side of the Hudson, south of Orange county belonged to (hem; they only venture to extend the jurisdiction, provided it belongs to them, which is about as efl'ectual, and not more so, than would have been an enactment of the legislature of New-Jersey, if it had declared that the boundary of the coun- ty of Bergen should extend over the land from the east side of the Hudson, to the north side of the East river, or to so much thereof as is included in this province of New-Jersey. In accordance with this non-claim on the part of New- York, was the actual possession. The possession of waters can only be made manifest by their use, and by the overt acts done upon their shores. The use of these waters for njivigation, commerce, fishing, and for all the purposes to which water can be applied, had been in the jjroprietors aud inhabitants of New-Jersey from its first settlement, without interruption or disturbance f^m New- York ; and the possession thus taken of our half of the river still continues. The fislieries all along the Bergen shores, carried out to the middle of the river, or as far into it as it was benefi- cial to go, have existed beyond the memory of man, and still ex- G 50 ist without any efFeclual opposition having been made thereto by New-York. The proprietary governors of New-Jersey, and the board of proprietors after its estabhshment, exercised every act of owner- ship of which the subject matter was susceptible. As early as 1669, Governor Carteret granted a licence to Peter Hetfelsen, to be the only and common ferryman from Communipau to New-York. In 1678, a ferry license was given by the same governor to Job Simerson, between Bergen, Communipau, and New- York. Other licenses of the same nature were given for ferries be- tween the shores of Bergen county and New-York. In 1733, Governor Crosby, as governor of New-Jersey, (be- ing also governor of New-York,) granted to Archibald Kennedy, esquire, one of the king's council in New-York, and also receiver general of the king, a license for a ferry from Bergen to New- York. In 1746, this same king's councillor and receiver general, Ar- chibald Kennedy, made a survey and location of Btdloiv^s Island, under a. warrant from the eastern proprietors. He also made a similar location of the farm at Horsimus, which was called the Dutch West India Company's Garden, and might have been supposed to have been acquired personally by the king ; as that company acted in a public capacity as go- vernors of the country, while it remained under the dominion of the Dutch, and he exercised all acts of ownership on the adja- cent waters under his New-Jersey title. Powles' Hook, Hoboken, and all the Bergen shore was loca- ted in like manner under the eastern proprietors, and the own- ers have, time out of mind, erected wiiarves and storehouses, and cleared fisheries beyond low water mark as far into the river as they judged it expedient to go. Upon the recent purchase of Powles' Hook by the Jersey Company, tiiey built wharves which extend into the river far be- yond low v.-ater mark. The corporation of New- York prosecu- ted two of the company who were found in that city, for an. 51 alleged trespass, but have permitted the suit'to remain untried for twenty years. Upon this suit the question now in agitation would have ari- sen, and might have received a judicial trial and detepmination Bill the corporation have declined a resort to an impartial tribu- nal, and the wharves, and others since erected, remain undis- turbed. It is, however, true, that in the year 1730, Governor Mont- gomery of New-York, granted another charter to the city of New- York, in which an attempt is made to carry the bounds and jurisdiction of the corporation to the west side of the Hudson^ The words having this operation are these ; after running to Red Hook, a line is given ^^from thence across the Hudson to low water mark on the ivest side, or along the limits of the province to a point opposite to West Chester.'''' This contingent provisional extension of the city bounds, is liable to the observation already made in regard to tlie new boundary given to the county of West Chester in the year 1768, which was probably borrowed from this charter, and is no evidence of either title or possession. If the true limits of the province did not carry them over to the west side of the Hudson, then they have no right to exercise any jurisdiction there, but must necessarily stop at the true western line, which is the middle of the river, and from thence run up their side of the waters until they come opposite to their beginning at King's bridge. This charter of 1730, is the only public document or private conveyance, which purports to convey any rights on the New- Jersey side of the Hudson; and as it appears to be mainly re- lied on by the corporation of New-York, it may merit a more full examination. Ii was granted by the king's governor of New- York, in the reign of George the U. and is brought up against New-Jersey as a muniment of the title of New- York to the whole of this river. The question is, whether the crown of Eng- land ever did grant the property of this river to New-York after it became re-annexed to the crown ? It is not, to whom the king granted the svpervisorship or custody of this royal river: and un- 'ess this charier does legally grant the river to the corporation 52 in full propriety and ownership, it can have no influence on the matters in dispute. Our construction of this instrument leads us to conclude with confidence that it is no legal conveyance of the river, but that the same remained afterwards, and until the revo- lution, a part of the domain of the kings of England in their political capacity. It may well be asked at the outset, what right the governor of New-York, or even the legislature of New- York, could possess in 1730,to convey ihis river to a corporation. It is a great river, an arm of the sea. It was essential to the navigation, the commerce, the defence and safety of an important royal colony. The king of England could only be the owner of the river as king, by his prerogative. The character of these waters had essentially changed since they had been first conveyed to the Duke of York. Then they belonged to a netvly discovered country, just acquired " by con- quest, or driving back the savage natives," and as such by the received law of nations, as well as by the common law of Eng- land, might be granted by patent, or ceded by treaty to whom the king saw fit, and upon this principle it is that the river was conveyed and passed by the letters patent of 1664, from the king to the duke. But this river had resulted again to the crown of England ; and when this pretended conveyance was made in 1730, the territo- ry on each side thereof had been settled by British subjects^ and had grown into great and powerful colonies, parcel of the dominions of the kings of England, governed by the common law of England, and by the statutes enacted by their own legis- latures, and entitled to all the benefits and privileges of the mo- ther country. The revolution too in England of 1688 had been effected, and by it the prerogative of the crown had been redu- ced and confined within reasonable bounds. The great principle, that the king was the agent and trustee of the nation, was fully established. In the first year of the reign of queen Anne, an act of parlia- ment had deprived the crown of the power of granting its do- mains for a longer period than thirty years. After this great event 55 had happened, no attempt was ever made in England to grant the ownership of rivers on the sole authority of the king. It may be well doubted whether king George himself could lawfully have granted away the ownership of this great river. That his deputy or governor of New- York, or his colonial le- gislature were incompetent to it, must be manifest to all. If then this river, and these waters could not be legally granted after they became re-annexed to the crown, had the charter in terms conveyed to the corporation " solum et fundam^^ of all them, the same had been void ah initio. The sentence of the law, even upon ^such a grant from the king, would have been, " that the king was deceived in his grant." But such was not the intention of this charter. There are no words of grant to be found in it, conveying the soil and owner- ship of these waters. The instrument contains a mere descrip- tion of boundary for the city of JVcw- York, and those words which betray a sinister attempt to extend its limits over to the west side, can legally operate only to place the river under the supervisorship of the officers of that corporation. To this end, the charter grants that the mayor of the city for the time being shall be bailiff and conservator of the North and East rivers. In speaking of this instrument in 1807, tne com- missioners of New-York add, as a fact, that accordingly " all arrests on these rivers were made by the mayor, (not the cor- poration) as water bailiffs and the process for that purpose was directed to him."* Lord Hale, in his celebrated Treatise de Jure Maris,f ex- plains to us the nature of the office of water bailiff, and recites the old cases which might have given rise to this charter of 1730. " The office of water bailiff (says Lord Hale) or scrutator, is a bare ministerial officer, which the king doth, or may appoint, in those rivers or places which are his in franchise or interest, and his business is to look to the king^s rights." Again he says — "The office of conservator of rivers, we find mentioned in the statute of the 1st of Elizabeth, ch. 17, and by a grant made to the city of London, and confirmed by the par- •Vid. Rep. p9. tHa.L. T,23. 54 iiaraent of 17 Richard II. ch. 9, the conservancy of the river Thames, from Stainsbridge to Medway, is granted to the mayor of London." We then see that as early as the reign of Richard II. a grant was made, and even confirmed by the legislature, to the London corporation, similar to that of 1730, set up by New-York. Nay Sir John Davis, in speaking of this charter, calls it a grant of the river Thames to the corporation of London. But it was soon discovered that even a general grant of the river, and of ^^e su~ pervisorship, did not pass the river itself, and the corporation were obliged to surrender the grant, and purchase another. These are the words of the reporter: — "The city of London, by a charter from the king, hath the river Thames granted to them, but because it was conceived that the soil and ground of the ri- ver did not pass by that grant, they purchased another charter, by which the king granted to them solum et fundam the soil and bottom of the said river, by force of which grant the city to this day receives rent of those who fix posts or make wharves or other edifices on the soil of the river"* This is without doubt the law, and the case is expressly in point. It is founded on a known and well established axiom of the common law, " that the king's grants shall pass nothing by implication. " This rule was laid down, and acted upon, as the true and ancient rule in the great case of the royal fishery on the river Banne, in Ireland, in the reign of queen Elizabeth. Davis gives us the third resolution of the court thus: — "It was resolved that no part of the royal fishery passed by the grant of the land adjoining, and by the general grant of all fisheries, for this royal fishery was not appurtenant to the land, but a fishery in gross and parcel of the inheritance of the crown by itself, and general words do not pass such special royalties as belong to the king by his prerogative, for the king^s grant shall pass nothing by impli- cation." Nor would this supervisorship of the river in this case be evidence, even of actual possession of the whole river. It was about the same time that the corporation of Bergen asserted • DaviaRep. 151. Ibid. 157. their supposed rights to the river, under their grant from the proprietors, by appointing " water bailiffs," who also had grant- ed to them the supervisorship of the waters from the western shore to the deep waters of the channel. As water bailiffs, it was made their duty lo apprehend offenders on liiose waters; and ia the execution of their office they did apprehend men from the colony of JVtiv-York fishing on the flats. In the year 1721,* the proprietor of Pennsylvania claimed either the whole or a part of the river Delaware, before the lords commissioners of trade and plantations; a board created in Eng- land to receive and report to the king and council, in all cases of limits and boundary arising in the colonies. This tribunal re- ferred the claim to the king's attorney and solicitor general, Sir Robert Raymond, afterwards chief justice of England, and Sir Philip York, afterwards Lord Chancellor Hardwick. These great law officers of the crown, reported, that having heard what was alleged by the council for the proprietor of Pennsylvania, and having examined the grants of New-Jersey and Pennsylvania, they were of opinion " that no part of the Delaware river, or the islands lying therein, were wiiliin the granting words of the patents and grants, but that the right to the same still remained in the croivn.^^ Upon the whole, it is manifest that New- Jersey always claim- ed, used and possessed the one half at least of the dividing wa- ters ; and if upon the true construction of the grants, the said waters did not pass, they remained in the crown at the era of the American revolution. Then the remaining inquiry is, on whom they devolved in consequence of that great event. The answer which we give, is that the ownership and jurisdiction of and over these waters be- came vested in the two states between which they flow ; each having title on her own shores, and lo the filttm aquce, or chan- nel of the waters. The principles already established conduct us at once to this result ; for if these waters belonged lo the Duke of York when he became king, and were by that event rc-an- noxed to the crown by his accession thereto; or if they did no* 1 Chalmev's Opinion* 50 56 pass by ilie patent to him, but remained always in the crown, and continued so until the revolution, then it is but a case of conquest by joint arms, and the cession and release of the crown of England contained in the treaty of peace of all territorial rights, would enure to the common and equal benefit of the two slates of which the river was the boundary, and which had been always in the possession thereof, and had time out of mind, used and occupied the waters for all the purposes to which such wa- ters can be applied. In such a case, each of the said states is entitled to one half of the dividing waters from its own shore, unless one could shew a prior and better title to the whole. We have al- ready shewn that these waters were no parts of the territory of the province of New-York. Neither the king or the duke grant- ed the same to that colony, nor had it ever any exclusive pos- session. But the Duke of York did grant to New Jersey the use of these waters for all the purposes for whicli they could be used ;- and possession had followed and accompanied the grant. Even the residue of the waters not granted to New-Jersey would not have resulted to the state of New-York at the end of the wan without the aid of this principle ; because they were no part of her former territory, but part of the domain of the crown, mere- ly flowing between the two states. It cannot be justly alleged or maintained that the state of New- York is entitled to all the property, franchises, and privileges which remained in the duke after his conveyances to the proprietors of New-Jersey. All these, the remaining regalia of the duke, reverted to the crown of England. New-York acquired by the revolution, only the terri- tory ivhich belonged to the colony. She did not, and could not legally acquire more than one half of those waters which re- mained in the crown, and flowed between her and the state of New-Jersey. Before the revolution the actual use of the waters was common to the people of both colonies, then subjects of the king. The king by his agent or water baliff was in posses- sion for the benefit of his people. The only rights on these wa- ters which did not belong to the crown, were such as the duke I 57 had granted away before he became king. He had granted to New-Jersey as we have shewn, all waters leading unto her ter- ritory for the purposes " of navigation, free trade, fishing, Or otherwise." But he had made no grant to his colony of New- York of any part thereof. He retained them in his own hands. Hence it is manifest that New-Jersey had a belter title to the half which she claims before the revolution, than New-York had to the other half, and the revolution has fully confirmed and established it. New-Jersey had grants, use, and possession. New- York had nothing more than such a general use, as the sub- jects of the same king must necessarily have of the waters ap- pertaining to his crown. In the case of Corfield and Carral,* decided in the Circuit Court of the United States for the Pennsylvania district, a simi- lar question arose. The state of New-Jersey had by legislative act, undertaken to regulate the fisheries in the bay of Delaware. The right to pass this statute was controverted, and the old grants to and from the Duke of York were before the court for con- sideration. On the sixth of August, 1660, the duke made a deed of confirmation of West Jersey to Penn, Byllinge, and others, of the same purport and tenor as that which he afterwards made to the twenty-four proprietors of East Jersey ; in which we find the same additional words of grant, to be found in the last men- tioned conveyance ; namely, "and also the free use of all bays, rivers, and waters leading unto, or lying between the said pre- mises, or any part thereof, for the purposes of navigation, free trade, fishing, &ic." It is to be remembered, that there is a most important diver- sity between the claim of East Jersey against New-York to one half of the dividing waters, and the claim of West Jersey to one half of the bay and river Delaware; in this, that the king's grant to the duke, makes this bay and river his western boundary, running him up the eastern shores thereof, to the most norther- ly point of that river, so that no part of this bay and river is in- cluded in the words of the grant, according to the opinion of the attorney and solicitor general of England, before recited. Judge • Vid. rv'alional Gazelle, May 3d, ISi'v H 58 Washington, in his comment on these grants says, "in this state of things, the revolution was conducted to a successful issue, when his Britannic majesty relinquished all claims, not only to the government, but to his proprietary and territorial rights to the same. The right of the crovirn to the bay and the rivei Delaware being thus extinguished, it ivould seem to follow, thai the right claimed by J^ew- Jersey in those ivaiers xvas thereby con- firmed, unless another state could shew a better title. Whether the claim of New-Jersey extended to the middle of the bay, as we see it did by the compact with Pennsylvania to the middle of the river, is a question we have no means of solving, but that the proprietors and inhabitants made use of the bay, both for na- vigation and fishing, can hardly admit of a doubt. This right is indeed expressly granted by the duke, by the grant of the 6th August, 1680." It contains a grant not only of all bays and rivers to the grant ed premises belonging, but also the ^^ free use of all bays and rivers leading unto the granted premises, for navigation, fret trade, fishing, or otherwise. The only objection which could have- been opposed to those acts of ownership under this grant, ivas. that the duke had himself, no title to the bay and rive^ Delaware under the royal grant to him. But the inhabitants enjoyed those privileges. The use of the bay and river amounted to an appro- priation of the water so used, (Vattel lib. i, ch. 22, sec. 266) and this title became indefeasible by the treaty of peace, except ar against some other state having a better title.^^ These are the sentiments of this distinguished jurist, and surely if the mere use of the waters of the Delaware bay, un- der a grant which the duke had no right to make, was such an appropriation of the waters as was ripened into an indefeasible, title by the treaty of peace ; much more so must the same use of the waters between New-Jersey and New- York, which un- questionably did pass by the king^s grant to the duke. Pennsyl- vania acted on this principle, and from a sense of justice, and a conviction of the equitable claim of New-Jersey to one half oi the Delaware, divided with her upon the most liberal terms. Upon some, or all of these grounds, wc think that the claim 59 iet up by the legislature of New-Jersey to one half of the divi- ding waters, is fully sustained, both od the principles of muoi' cipal and public l.iw. The great principles of justice and equity too, which should govern in contests of boundary and limits be- iween independent and friendly slates, come in aid of the legal title. To the acquisition of a full properly in these waters, New-Jer- iey contributed her full proportion of blood and treasure. In consequence of her restricted northern boundary, she obtained not an acre of the vast territory which was divided among the states after the revolution. New-York gained by it a mighty em- pire, and now in her strength, she attempts to make us depend- ant on her for the common privileges of the waters which wash our shores, and that in the face of solemn grants and conven- tions, expressly conveying those privileges, upon the faith of which New-Jersey was first colonized and settled by our an- cestors. II. Of Staten Island. The right of New-Jersey to Staten Island, and the small isl- ands contiguous, rests upon the plain terms and true import of the original grants before cited. Staten Island, Long or Napau Island, and Manhitas or Manhattan Island, were all well known hy these names before the making of those grants. Long and Manhattan Islands, belong by their natural positions to the territory on the east of the Hudson, and Staten Island manifest- ly to that on the west of that river. A bare inspection of the map therefore, shews that " the tract of land lying and being to the westward of Long Island," necessarily includes Staten Isl- and. Had it been intended to exclude Staten Island from the grant to Berkley and Carteret, it would have been named, as well as the other islands, and the grant would have been of "the tract of land lying and being to the westward of Staten Island and Manhitas Island." The entrance into the North river through the Narrows, was well known to be along the western shores of Long and Manhattan Islands, and was much more likely to be assumed as the boundary between two states, dc- signed lo occupy tlie opposite banks of that noble river, than a narrow circuitous channel, not navigable throughout by vessels of burthen. And however that may have been, we think that the terms of the grant are too plain to admit of more than one inter- pretation, without doing them great and unnecessary violence. The subsequent words of description, " bounded on the east, part by the main sea, and part by Hudson's river," appear to us not to conflict with, but rather to confirm this construction, and equally so, whether the Hudson be considered as properly commencing at the Narrows, or at its confluence with the East liver. The waters between Staten Island and the main land are not a part of the river Hudson, nor are they what is technically meant by the term " main sea." They are in fact, rivers and bays, through which the waters of the Hackensack, Passaic, and Raritan flow into the main ocean. The grants are drawn up with great technical precision, and no doubt by eminent con- veyancers, under the inspection of the law officers of the crown. The language employed, should therefore be understood accord- ing to its true legal import. But the waters in question are not what is called " main sea," either in legal or in common language, and were never so de- signated. A part of them was called by the Dutch, Kill Van Kull, or river of the bay, and a part Acliier Kull, or Ijjfack bay, since corrupted to Arthur CuPs bay. To the west of the Kills, the Sound is described in the Indian deed to the Elizabethtown people, made October 2Sth, 1664, as " the river that parts Sta- ten Island and the main." Governor Nichols, in his confirmation of that deed, made the ensuing December, it is true, changes the word " river," to "sea ;" whether ex industria, or accidentally, can only be con- jectured. Be that as it may, there is a well known distinction in legal and in common language, between the expressions sea and tnain sea. The Monmouth patent granted by Nichols, April 8th, 1665, describes the land granted, as " beginning at a certain place, com.monly called or known by the name of Sandy Point, and so running along the bay, west north-west, till it comes lo the mouth of the Raritan river, &;c>" No grant or geographical Gl desciiplion known to us, designates any part of the waters be- tween Siaten Island and the main land as the " main sea," nor can we persuade ourselves that they are intended by this ex- pression, in the grants of the Duke of York. If the phrase was not meant as we suppose to be synonimous with main ocean ; the arm of the sea, from the Narrows to the confluence of the North and East rivers, is much more likely to have been intend- ed, and much better answers the description than a narrow and shallow sound. Notwithstanding the plain import of the grants, it is unques- tionable that New-York has possessed Staten Island, and the other small islands from the first organization of her govern- ment. Had this possession been undisputed, time might have ripened it into an undisputed title. But New-Jersey has always pnuested against it, and embraced every fit opportunity of as- serting the superior validity of her claim, and of endeavouring to obtain possession. A careful examination of the history of the disputes between the two states respecting their boundaries, will fully shew this, and will serve also to demonstrate that the early possession of New-York was not owing to a contemporaneous construction of the grants, satisfactory to the parties concerned, but is explained by other circumstances. The long continued possession then, having been wrongful from the first, and always resisted, the lapse of time has served only to increase the injury. If it were conceded that possession, under such circum- stances, could establish a right, surely that right must be confined to the strict limits of the possession. Now the waters which se- parate Staten Island from the main land are not, and never have been included Vi^iihin the limits of Richmond county, nor are they treated by any law of New- York as within her jurisdiction. On the contrary, a part of them, at least, has always been under the exclusive jurisdiction of New-Jersey. Colonel Robert Hun- ter, the governor of both states, on the 4lh August, 1716, granted a charier to Perth-Amboy, under the great seal of the province of New- Jersey, by which he fixes the bounds of the city at low water mark on the Siaten Island side of the sound, without re- 62 striction, and without the intimation of a doubt that the limits of t|ie province extended so far. Under this charter, Perth-Amboy was a port of entry under the king of England ; it was declared a free port by the state of New- Jersey in 1784, and so continued until the adoption of the federal constitution, and has been a port of entry ever since, under the act of congress : and the mu- nicipal authority of the corporation has always been exercised over the waters contiguous. The waters of the sound and Kill Van Kull have never been claimed by New-York, and this fact IS admitted by the commissioners of New-York, in the corres- pondence of 1807.* In addition to the article under the first head, it may be re- marked, that in the correspondence between the commissioners on the part of the two stales in 1807, it is asserted by the com- missioners of New-York,f " that from their earliest recollection, there has always been a reputation, or understanding, that the whole of the waters of the river Hudson and of the bay between Staten Island and Long Island were within the actual jurisdic- tion of New-York;" though there was "no precise reputation or understanding either way, whether such jurisdiction extended to high water mark, or was confined to low water mark, on the shore of New-Jersey." It is admitted, however in the same breath, " that the citizens of New- York and New-Jersey had a free and common use equally of the waters in question, to take fish within the same, and for every other purpose." The under- standing of actual jurisdiction asserted, is contradicted by the fact of use and occupation by New-Jersey ; and it appears from this admission, that the people of New-Jersey have always, in the words of the grant from the Duke of York to the tv;enty- four proprietors, in 1G82, enjoyed "the free use of all bays, ri- vers, and waters leading unto or lying within the province, for navigation, free trade, fishing, or otherwise," and that this in- cluded the North or Hudson river among the rest. They have, ' Report p. 28, t Ibid. 6r> on the Hudson river, from Staten Island northward, and directly opposite to the city of New-York, huilt wharves extending h^%i beyond low water mark, established ferries, and thus occupied the waters ; as also by fishing with seines, fykes, and weirs with- out interruption, and in various other ways claimed and exer- cised acts of ownership in and over the waters in question. After the adoption of the federal conslitution, congress, on the 4th August, 1790, passed the act dividing the states into districts for the collection of revenue* Sec, in which they enact, " that the district of the city of New- York shall include such part of the coasts, rivers, bays, and harbours of the said state not in- cluded in the district of Sagg Harbour.*' And they enact also, '•' that the district of Perth- Amboy shall comprehend all that part of New-Jersey known by the name of East New-Jersey, (that part excepted which is included in the district of Burlington) to- gether with all the waters thereof heretofore within the jurisdic- tion of said state, in which district the towns or landing places of New-Brunswick, Middletown-Point, Elizabeth-Town, and Newark shall be ports of delivery, and a collector for the district shall be appointed, to reside at Perlh-Amboy." Under this act, all vessels belonging on the west side of the Hudson river south of forty-one degrees of latitude, were enrolled and licensed at Perth-Amboy, as belonging to *' waters theretofore within the jurisdiction of New-Jersey," by which words the jurisdiction of that part of the Hudson or North river was assigned to the col- lector of Perlh-Amboy in New-Jersey. By another act of con- gress,! passed 8ih March, 180G, it is enacted, " that the town or landing place of Jersey shall be a port of delivery, to be annexed to the district of Perth-Amboy, and shall be subject to the same regulations and restrictions as other ports of delivery in the Uni- ted Slates." After the passage of this act, vessels bound to and from foreign ports laded and unladed at Jersey, clearing and en- tering at Perth-Amboy, and vessels from New-York, merely crossing the Norih river, cleared at New- York for Jersey, en- tered at the collector's office at Perth-Amboy, and under his clearance sailed from Jersey to foreign ports, ft thus appears 'hat by the act of 1790, giving to the collector of New-York * Vol. i.24fi, ^ Vol viii.23. 64 jurisdiction ovci aii the coastr, rivers, bays, and harbours of the ^|said state, no jurisdiction passed or was claimed of the waters on the west side of the Hudson contiguous to New-Jersey, while by the same act the assignment to the collector of Perth- Amboy of all the waters theretofore within the jurisdiction of New-Jer- sey passed the control of those waters as such, and as such they were occupied without opposition. As the port of Jersey was twenty-five or thirty miles distant from Perth-Amboy, and great inconvenience was thereby occa- sioned in entering and clearing vessels, an application was made to congress to make Jersey a port of entry. This was opposed by the secretary of le »»vy, ns being too near New-York; and by his suggestion, a plan was adopted to annex Jersey to the port of New- York ; this plan, being first sanctioned by express consent of the state of New-Jersey, manifested by resolution of the legislature directed to her senators and representatives in congress. An act was passed by congress,* March 2, 181 1, by which it is enacted, " that all that part of the state of New-Jersey which lies north and east of Elizabeth-Town and Staten Island, be, and the same is hereby annexed to the district of New- York; that an assistant collector, to be appointed and commissioned by the president of the United States, shall reside at the town of Jersey, who shall have })ower to enter and clear vessels, in like manner as the collector of New- York is authorized to do, but such assistant collector shall nevertheless act in conformity to such instructions and regulations as he shall from time to time receive from the collector of New-York." Under this act, the control over the waters of the Hudson, previously exercised by the collector of the port of Perth-Amboy, as part of New-Jersey, passed to the control of the collector of New-York and his as sistaiit at Jersey. The words of the acts of 1790, ISOG and 1811. and the proceedings and practice under them riilly sustain the fact, that before the year 1790, and since that time, New-Jersey possessed jurisdiction over the water? of the Hudson opposite her shores. By the last act for collection of revenue on in)ports and tonnage, and by consent of New-Jersey the jurisdiction is changed, but it is chauged for no other purpose. t^ 4^ ''-tttf 5.3r»i .•^^ >.o°<, - 1 {A *^ K^^ -^^^ ,0 a 'if . ^ <; -^ •

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