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Eew Jersey, aovernor, 1817-1830 (Isaac K. \"ilIiarnson)
llessa.ge of His I^Soellenoy, the Governor ...
Trenton, 162b.
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OF
HIS EXCELLENCY THE GOVERNOR,
•rOGETHEK: WITH
THB REPORT
0B« THE
COMMISSIONERS APPOINTED ON THE PART
or. THE
Sktutt of Seitt^^eti^srui^
^(3 SETTLE THE QUESTION OF 'TERRITORY AND JURISDICTION^
IN DISiPOTE WITH THE
FEBRUARY. 1828

TRENTON
JTJINTED FOR THE STATE BY JOSEPHJUSTICB
I8f8.

MESSAGE, &c.

EXECUTIVE DEPARTMENT, Trenton Fee. 4, 1828.
Gentlemen of t7ie Legislatiiie 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 Slaten Island, by the commis
sioners appointed under the authority of this state, to negotiatfe
an amicable settlement of the existing differences between the
states of, New-Jersey and New-York', respecting boundary and
jurisdicVion ; 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 nghts 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 issoe. ^,
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 mbde, the unhappy differences be
tween the two states. . _
In 1806, her legislature made advances for that purpose, by
appointing comraigsioners 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 boun
dary line of New-Jersey ; when the. commissioners appointed

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, lo be submitted to the
decision of the Supreme Court of the United States, which, by
the federal constitution, has original jurisdictiop of all controver
sies between, two or more states; atid where the questiops of
boundary and jurisdiction, might have been temperately discuss
ed, and fairly and justly decidetl; 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 statfe, in th6 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 1826, the deputy sheriff of Richmond county
was arrested and indicted in this state, for serving process
jvithin the jurisdiction of New-Jerseyy under the authority of
the laws of New-York; wljen 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- York legislature might be induced by the perilous situ-
tion 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 setthng the controversy ; and thereby render unne-
cessaiy the further prosecution of that officer, for the purpose
of maintaining our jurisdiction.

¦ And in the same year; upon an informal intimation of the go
vernor of NewrYork, to the executive of this state, that if the
time was enlarged by our legislature fof the appointment of
commissioners by the respective States, commissioners would
probably be appointed on the part of New- York, our legislature
passed an act for that purpose, which was duly coraihunicSited to
the governor of New- York ; but. which was tardily met by the
legislature of that state, and under circumstances which 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 actually attending at Albany to meet the commissioners
of New- York, a bill passed one branch of her legislature, and
which subsequently became a Ie^w, asserting and declaring the
boundary line of that state to extend " along the west shore at
low water mark of Hudson river, of the Kill Van KuU of the
sound between Stafen Island and New-Jersey, and of Raritan
Bay to Sandy Hook" ; thereby extending theii' claim of territo
ry much farther than had ever before been done by any legisla
tive exactment.
This government certaidy bad a right to expect, that pendiflg
the negotiation for an amicable settlement of the differences, on
conditions honourable a|id satisfactory to both parties, all thing^s
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,
that the New-York commissioners should reject all terms of
compromise which -imphed 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 offa.vourand 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 coliduct, so different from that sense of justice, magna-

nimity, and amily, that ought to exist between " independent
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 assertipn, which has been repeatedjy 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, byjhis state, over those waters,
and the actual use of them by our citizens, for all useibl and
necessary purposes; and by the wharves and piers which have
been, and are constantly erecting, utider the laws of this state,
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 19 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
o( that state, to bring their claims to a judicial decision, I refer
to the fact,' that, upwards of twenty years ago, the corporation
af the city of New -York commenced an -action at law, against
certain individuals for a trespass, or usurpation upon tl^eir rights,
building the first piers at Jersey City, which are extended into
he Hudson river, far beyond low water mark; but which action,
ilnce the service of the process, has not been further prosecuted,
[10 doubt ffom a consciousness of the weakness of their title' and
1 reluctance to bring it to the test of a judicial investigatbn. And
since that time, other piers have beep 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
tion of our rights, 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 twb or more states, gives the Supreme Court of the Unit
ed States cognizance of questions which may arise between mem
bers of the confederacy, as to their sovereignty aad jurisdictionj"
and if that court does not possess jurisdiction to settle and deter
mine all such questions, then New-Jersey has no means wiihin
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 maintenaiice of her just rights,
until a returning sense of justice and amity shgli induce that slate
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 id 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'th^ prosecution against him.
I recommend to your consideration, whether any further legis
lative provision is necessary to secure our citizens in the peape-
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 eomperisaling 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 OF THE
COMMISSIONERS, &>c.

To (he Honourable the Legislative Council
and General Assembly of the State of New-Jersey.
The undersigned commissioners, appointed on the part of the
state of Netv-Jersey, to settle the questions of territory and j(j-
risdiction in dispute with the state of Neiw-York,
Respectfully Report : ,
That soon after they received their appointment and com
mission from his excellency the governor of this state, they 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 invest
ligation of the claims of New-Jersey voyer th^ waters lying be
tween the two states ; and to endeavour, in the spirit of the ac^'
which created their powers, and by atj 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 wa$:
considered that the question of title had been long before the
public, a,nd had received an able discussion at a meeting of com
missioners, heretofoi:e appointed by the two states for the same
objects. And moreover, your commissioners at their first meeting with
the commissioners of New-York ip August last, perceived no
disposition on their part, to engage in a formal investigation of

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the title ; and it was suggested, that propositions jn 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 protracted and unhappy contro
versy.- The proposition No. 7, submitted by your commissioners,
in substance embraced the principles of the agreement hereto^
fore made bet wefen 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 pot only be repugnant to our own ppnvic-
tions of the rights of New-Jelsey, 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 modificaiipris of their respective propo
sitions; and accordingly, at a subsequent meeting at Newark and
at several siicceeding meetings at Albany, the subjoined propo
sitions, marked No. 1, 2, 3, 4, 5, 6, 7, find 8, were inter
changed. In all of whiob, on the part of New-York, the undersigned
B

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regret to statei as your honourable bodies will perceive, the ex
clusive right and jurisdiction of the state of Nevv-York ovet- the
Hudson, is considered as unquestionable and conclusive, andjn
the powers conceded to i the state of New-Jersey, we could not
fail to be struck whh the guarded restrictions, that by necessary
construction, effectually excluded her from even a concurrent ju-
risdictipti over any portion of iheste common waters.
In the ternis of settlement submitted by your comrhissioners,
they endeavoured to remove any just 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 reqqire.
As that great and rapidly increasing pmporium of commercd, is
identified with our national prosperity, and maintains very inti
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 , accohimodation, with
which we approached the duty assigned to usl
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 Nevvr
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, Jhat further negotiation
would be fruitlesfe, and therefore concluded it, by addressing lo
them the note marked A, the answer to which marked B,
and the further corrjdspondence, 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 n6t consistently extend the
concessions of New-Jersey beyond the terras of our proposi
tions. '"'¦.:

We have deemed it proper to submit With our report, a State
ment of the clainos of New-Jersey, to the Hudson river and
Staten Island, and the reasons in law, on which those claims are
founded.
RICHARD STOCKTON,
JOHN RUTHERFURD,
THEODORE FRELINGHUYSEN,
LUCIUS q. C. ELMER,
JAMES PARKER.

, yjRST PROPOSITION ON THE PART OF NEW-JERSEX. -
The cotaraissioners 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 bay, be the boundary between
the two states, and a common highway, equally free and' open
for the use, benefit, and a,dvantage of both parties ; the rights of
fishing, docking, wharfiiig, 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 tend 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 said waters, and bona fide, de
parting from, bound to, or riding at anchor before any cny or
town in either state, where she hath last laden, unladen, or
departed, or where it is intended she shall first thereafter
lade, uillade, or enter, be considered exclusively within the ju-

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risdiction of such stat#; atid 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 Bedlow's Islatrd, 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-YOttK.
The State of New- Jersey shall enjoy and exercise exclusive
jurisdiction on all 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 he served upon any^ person indebted -
wiihin the said state, on contracts arising therein, or charged
with having committed any offence within said stale, and who
may be on board of any vessel fastened to, or along side of such
wharves, or aground on said shore, or whp 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, arid'
a common 'highway for both parties, and New-Jersey lo relin
quish all claim to Staten Island and the islands in the above wa
ters now claimed and possessed by New- York.
2,. The stale of New-York to have the exclusive jurisdiction
in and over the waters of the Hudson, with the following excep
tions, viz, New-Jefsey to have the exclusive right to regulate

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and exercise jurisdiction over wharves, docks, and other im
provements made or to be made on the New-Jersey shore
and the fisheries on the west side of the channel,.so that the na
vigation be not obstructed or injured; and New-Jerse]f 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 liist laden or unladen, or
where it is intended she shall first thereafter either 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 state of
New-Jersey, instead 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 coinmitted, or trespasses done
by citizens of New-Jersey on the west side of'the majn channel.
3. The state offNewrJersey 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 PROPOSITION 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
slate 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-Jerspy, theinaking of such propositions
not to affect any question of right between the two states.
1. The inhabitants of New-Jersey, in common with the in-

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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 stale of iNew-Jersey, southwardly along said stale, and
in th% w^ers between Staten Island and New-Jjersey, 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 slate of New-Jersey shall enjoy and exercise exclu
sive jurisdiction on all the wharves and land now made, or
whi^h may Jiereafter be made on the shore of the state of New-
Jersey, opposite to'ihe stale of New-York, and also to low wa
ter along the whole of said shore, and that civil procegs 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 lo or by the side pf such wharves, or aground on such
shore, provided thai such person or persons shall not then be
under arregt 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 state of New-York, or anchored in
any of said waters for the purpose of lading, or unlading as a-
fotesaid, or who may then be under arrest by virtue of any-
process, or avithority Of the slate of New- York.
4. The state of New- York shall have the right lo exercise all
jurisdiction, power and authority, over the said waters, other
than such as herein secured to the state of New.-Jersey.

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THIRD PROPOSITION ON THE PART OP NEW-JERSEY. '
I. The waters of the Hudson river, and the other waters be
tween thje two states, to be the boundary and a common high- ¦
way for both parties.
2. Each slate shall have the exclusive jurisdiction and regu
lation of wharves, docksj and other improvements, made or to
be made on its own shores, and of the fisheries adjacent to i{s
shores, provided that the navigation be not obstructed or in
jured. All vessels fastened to or aground on the shore of either
stale, 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 authorityov^r 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 stipulatecl.
5. The state of New-Jersey to relinquish all claims lo Staten
Island and the other islands in the waters between the two
states now claimed and possessed by New- York.

THIRD PROPOSITION ON THE PART OF NEW-YORK.
¦ 1. 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 ihe 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 Staien Island and New-Jersey, to be so regulated,
however, as not to impede or obstruct ^he 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 slate 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 sid&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 slate of New-
York. 3. The state of New-Jer.sey 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 ihe-shore of New-Jersey, or upon any
wharf or land now made, or which may hereafter be made, on
or adjoiningthe said shore ; such process not to'be served upon
any person orpersons, on board of any vessel attached to, lying
at, lading or unlading at or by any wharf, pier, or shore, in the
state 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 slate of
New-York. 4. The state of New-Jersey shall also have the right 'of serv
ing process, issued in pursnance of the laws of that state, upon"
all property taken out of New-Jersey 'to evade due process of

17
law, in all places where the right to serve criminal process, issu
ed under the 'authority of the slate of New-Jersey, is provided
for bjr 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 stale of New- York, so
as to render it s^ibject to the exigency of such process, by vir
tue of such seizure, according to the laws of the stale 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 sucji 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 slates, to he the boundary, and a common high
way for hoih parties.
2. Each state shall have the exclusive jurisdiction and regula
tion of wharves, docks and other improvements, made or lo 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 slate.
3. Each state shall have concurrent jurisdiction over the said
waters, in the service of process issued for the enforcement of
any contract made, or wrpng dpne or committed against such
state ; and alsb for the service' of criminal process, for offences
committed against such slate above low water mark : provi
ded, that as lo 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 slate of New-Jersey shall have concurrent jurisdic
tion for all offences committed by her citizens on the waters of
the Hudson adjacent to New-Jersey; and the state of New- York
c

18
shall have concurrent jurisdiction for all oft'ences coramated by
her citizens on the other waters between the two statesj adjacent
to the stale 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 execntion pf her health laws, and all other
jurisdiction,, power and authority over the said, waters, in every
case not herein before stipulated : provided that the same shall
be in every respect, equal and reciprocal as to the two states.
And the state of New-Jersey shall exercise exclusive jurisdic
tion over all the other waters between the two stales, in the en
forcing aild execution of her health laws-, and all other jurisdic
tion, power and authority over the said waters, ;in every case not
herein before stipulated : provided that the said exclu?ive jiiris-
diction, shall be in its exercise, in every respect equal and reci
procal as tQ,the two states.
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 pN THE PART OF NEWYORK.
1 . The state of New-Jersey shall have exclusive jurisdiction
over all the waters on, the west side of the channel betweeti Sta
ten Island arid 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 lo low water
mark albn^ the whole of said shore, and also on all vessels fas
tened lo or by (he side of any such whaxf 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, shall 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 all
civil process over all the waters between the ghores of the two
slates, upon any person or persons domiciled in»-ihe said slate 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-
video also, that such person or persons shall not then be under
arrest by virtue of 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 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 agaiinst 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 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 state, upon all
property 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 diat 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 New-York Commissioners^
The undersigned, commissioners of the state of New-Jersey,
in the present stage of the negotiation, beg leave explicitly to
state lo the commissioners of the state of New-York, that the
claims of New-Jersey, in the matters of Umits and boundary, in
difference with New-York, are as follows :
1, A right of territory and jurisdiction to the middle oi the
river Hudson, and the narrows, agreeably to the true construc
tion of the original grants, and the rights required by the war
of the revolution, and the treaty of peace, recognizing the in
dependence of the United States.
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 accommodation, the undersign
ed have not only refrained from exhibiting their claims^, founded
as they beheye upon the most approved principles of law, but
have explicitly offered lo 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 ihe
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

21
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 have the honour to be, with great respect, Sic.
RICHARD STOCKTON,
JOHN RUTHERFURD,
THEODORE FRELINGHUYSEN,
JAMES PARKER,
LUCIUS q. C. ELMER.
To John T. Ii'ving, Nathaniel Pitcher, Samuel A. Talcott,
Hermanns Bleecker, and Herman J. Redfield, esquires.

B.
Letter from (he New-York; to the New- Jersey Commissioners.
Dated 17th September, 1827.
Gentlemen,
. The commissioners of New-York have the honour to acknow
ledge the receipt of a note from ihe commissioners of« New-Jer
sey, of the loth 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 landi The commissioners on the part of the state
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 irj
controversy between the two stales, 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
that 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 whole matter upon the
footing pf 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 ibis state, to stipulate for
the enjoyment by the 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 ayoid 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 pf our propositions
as to render them in this respect acceptable.
At the same time however^ we must lake the liberty of say
ing that w<e did suppose that those propositions contained' granls
of privileges to New- Jersey, which she had never enjoyed, and
could only have the right of enjoying by virtue pf 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 the 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 pan of ihat state,

23
as merely according to New-Jei'sey 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," forit 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 proposition with which that note closes, submitting
to us " the expediency of referring the decision of the' contro
versy lo 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-
mil 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 ppwers
in relation to it, that we should inquire whether the ?ommission-
ers of New-Jersey are authorized by the laws of that state to
subtnit 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. REDFIELp,
To Richard Stockton, John Rutherfurd, Theodore Freling
huysen, James Parker, L, Q. C, Elfner, esquires, Com
missioners.

24 C.
Letter from the New- Jersey, to the New-York COnmissioners.
Albany, September 17ih, 1827.
Gentlemen, The cpm missioners of the slate of New-Jersey have the ho
nour to acknowledge the receipt pf 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 tvvo 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 pf
the river, impairing pur right to serve process on ouir own wa
ters, and against our o^n citizens, and was so restricted in its
terms, and so qualified in its 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 indifferent and impartial tribu
nal," 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'lo the setltemenl 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
tion 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 particulap-
ly to the Supreme Court of the United States, as the tribunal to

25'
whose Oonsideration and judgment, we confidently believe the
state of New-Jersey would submit the controversy.
RICHARD STOCKTON,
j;OHN RUTHERFURD,
THEODORE FRELINGHUYSEN,
JAMES PARKER,
LUCIUS Q,. C.ELMER.
To John T. Irving, Nathaniel Pitcher, Samuel A. Talcott,
H. Bleecker, Herman J. Redfield, esquires.

D.
,Le(terfrom the New-York, to the New- 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 Slates, we
beg leave res,pectfully 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 onr 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 differen
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-
D

26
dence between the executives ot the two states, and by such
recommendations as they might respectively malcf to the legis
latures of each.
This we believe is the usual channel through which such re
commendations are made, and the 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 Stockibn, John Rutherfurd, Theodore Freling
huysen, James Parker, Lucius Q. G. Elmer, esquires. Com
missioners.

The following facts and argument, in relation to the mMers in
controversy between Nev^-Jeriey and New- York, are submitted
by the Commissioners of New-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 right to Staten Island.
I. Of 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
1682y 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 thjs 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-J,ersey, 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 lo settle the country had been made
by the Rritish government in early times. •
In 1584, queen Elizabeth granted lo 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 wiihin Us limits New-England, NewrYork, New-Jersey,
Pennsylvania, Delaware, and Maryland, the ^hole 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 & quo, warranto, after which the whole
was re-annexed lo the crown.
The languishing condition of these settlements attempted by
the English, induced the Dutch to set up a claim lo 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 farm at Horsimus, and sent out many ae-^
tual settlers from Holland, who took possession of large tracUi
of land in both states, as subjects of the Slates, Generah 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, vvas once again revived; and that it might be regained
and secured, and settled by Enghsh subjects upon a large scale,
it was resolved by the king and his council to create a princir

29
paHty in favour of the Duke-of York, the king's only brother,
and the heir apparent of the crown ; and that, for the purpose of
immediate colonizntion, 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, 1664, and in June of the same
year the duke conveyed New-Jersey to Berkley and Carteret.
To make these grants effectual, and lo 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, 1664, 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 granges, 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 ihedate 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 constitution, and has ingrafted into it
the most approved principles, of English liberty. Its sole object
was to invite and encourage the settlement of the colony, by the

30
offer of a free constitution, securing to the adventurers the bless
ing of civil and religious liberty.. In truth it is the same substan
tially as thai under which New-Jersey, lived until the revolution :
nay, it may be further said, that the preserit consutulion of the
state differs from it no more' than wSs 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 colpny, of creating a new
state. The duke, being the ownc;r of a domain extending far to
the east and north, grants New-Jersey lo Berkley and Cartere^
that they *' might plant a colony." He reserves New- York to
himself, that he or his immediate agents might not oiily watch
over and keep in subjection ihe foreigners who had settled the
country, but mix them up with a muc|j^Jarger number of English
subjects, and thus lay the foundatioii^f another distinct sove
reignly, lo be governed by his authority under the protection of
the crown of England.
The result is, that these grants are not lo be considered as
merely muniments of title, as private deeds between individuals,
but as grants of territory, jurisdiction, and government, intended
to call into existence a new people^ and to create a new political
state. They are all in paH materia^ parts of the same transac
tion; they have the same objects; they deal wiili matters of
state and sovereignly; they lake their origin from the yMS,^en,-
iium, and must especially now upon a controversy of limits and
jurisdiction between two sovereign slates, 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 ihe
duke bears date on the 12th March, 1664. It grants to the duke,
his heirs, and assigns for ever inter alia " the Hudspn river"
• and all the lands from the west side pf Cpnnecticul, to ihe east
side of Delaware b&y," including the states of New-York and
New-Jersey. This territory is tp,] be holden of the crown of
England, in fred 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" lo correct, punish, pardon, govern, and " rule ac
cording to such laws, orders, ike. 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 lo, but
as near as may be agreeable to the laws of England, saving also
an appeal lo the king on any judgment or sentence," he.
It adds also the right to bring over British subjects, to exer
cise martial law, lo make defensive war, and regulate commerce;
in finCj as to this territory, it invests the duke and his assigns
with all the regalia of the crown.
It creates a sub-royalty in favour of the duke, his heirs, and
assigns, subject only lo the general lie of allegiance lo |ings of
England. The right of the king to make such a grant to a subject can
not be brought info debate.
The kings of England, prior to the revolution of 1688, claim
ed and exercised that right even in England, and without the
concurrence of parliament.
Such were the counties palatine of Chesler, Durham,iand
Lancaster, granted in ancient times lo distinguished individuals.''^
They were called counties palatine, from the words palatio 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-
lacC. But as to neivly 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 rbyal or proprietary governments, which latter were
granted out by the crown to individuals, in the nature o( feudal
principalities, with all the inferior regalities of subordinate pow
ers of legislation which belonged to counties palatine'."^
* 1 Bftck, Com, 116 17, t Ibid, 107. i IbU. 108.

32.
Lord Mansfield on our subject says, "after the conquest of
New-York, in which most of the old Dutch inhabitants remain-
JIIMI).'!'
ed, king Charies II. changed the form of iheir 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 granls as
legal, a-nd vesting in the grantees all the powers enumerated.
In the case of Hall arid 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 .political govern-
meni"i(y 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, andthe whole of Which was claimed by them.
The proprietors were substituted in the place of the duk«, ac
cording to the stipulations of the patent, and became the 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, lo be planted by others with British subjects
and adventurers, to which he gave the name of New-Jerse^'
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 westward 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,
" Cowper's Rep, 2U, Hall v. Campbell.

33
which is 41 degrees 40 minutes of latitude, and crosses thence in
a straight lin^a the Hudson river, in 41 degrees of latitude, to
be called by'lhe name of Nova Csesarea, or New- Jersey, " to-
, gether wi^Jx^all the rivers, mines, minerals, woods, fishings, fowl-
ings, &;c. and other royalties, profits. Sic. to the same belonging,
in as full and ample a manner as the same are granted to the
Duke of York. Upon the rnaking of this grant, the proprietors
took possession. The concessions, or constitution of February
1664, before mentioned, induced many id emigrate from Eng
land. They were published also in New-England, and the liberal
plai of government esiablighed, induced many settlers to remove
from those pai-ts.* Philip, Carteret came over in 1665, and as
early as ihe 30th May, 166S, a legislative body consisting of a
governor, council, and bouse 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 prdper 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 Dukei as has. been already seen ; but in his grants lo
the proprietors are lobe found only the general description of
"rivers, mines, minerals, &c. and other royalties," vyhich might
be satisfied without construing them to include the great powers
of political government. Sir Edmund Andross, the duke's go-
.vprnor 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-TowOi which r.iade Philip, Carteret the pro
prietary governor a prisoner, and brought him forcibly to New-
» Smith's History 67.
E

34
York, where he was indicted and tried for usurping the king's
govei-nment in New-Jersey. He was acquitted by ||ie jury, not
withstanding all the influence of the governor' and the court was
employed lo procure his conviction, and the conduct and pro
ceedings of Andross vvere 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 graTntees of Lord Berkley. Conveyances had
been made of East -Jersey to twenty- four persons^ afterwards
called the twenty-four proprietors. To free the prOprielary^o-
vernor frOm aU the doubts arising out of these events, to explain
the dopaain and povpers intended lobe Conveyed by the former
grants, which are recited, the Duke of York made a confirma
tory grant in tljie year 1682, lo the eastern proprietors. By it he
alteft the phraseology of the first grants in regard to rivers, which
merely included rivers as appurtenances, in these generkl terms,
" together with all rivers, &c." which might be satisfied by in
ternal rivers. But this additional confirmatory graiit adds this
important section, not to be found in ihe former grants, namely,
" and also a.]i islands, for|s, &;c.' whatever, to the same belonging,
And also the free use of all bays, rivers, and waters, leading'
ufito', or lying between ihe said premises, for navigation, free
trade, fishing, or otherwise." - ' '
^' And for the better ena))ling the grantees to improve ani
plant the said premises with peo^Ze, 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 time being, all and every such and the same powers, autho
rities, jurisdictions, governments, and all matters and things what* f"
soever, which by the said letters patent were granted lo ihi^:
Duke of York," to be exercised as fully, and lo all intents and
purposes, as the duke might have done.
This last grant is a public and solemn act, whereby a former
sovereign granls and confirms lo a stale already in existence, and

35
in actual possession, all the rights remaining in him, or which
' 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 of
written conventions or treaties, bul appear in the shape of grants
or deeds of land, to take effect under the statute of uses. The
duke's first grant to Berkley and Carteret, is by lease and re
lease, and refers expressly lo the statute of uses fOr its efficacy ;
and the deed of confirmation of 1682, is thrown into the shape
of a deed of hargain 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 ihe common law will give lo the terms of this grant.
The operative words are these, " all that tract of land adjacent
to New England^ and lying and being lo 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 hland, and Manhattan Island, and
therefore are within the descriptive words of the grant. The
larfd to the westward of these islands passed by express words.
This. term is of great extent iaits 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 Tejected, New-Jersey must begin
where those islands end. Nor Ought they lo 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 oiight to yield to the former, for it is an established rale 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 cati exist of the intention
to pass all the lands to the west of these two islancis, the addi
tional description which makes the eastern bonndary lo be the
main sea and the Hudson, ought not to lessen or impair the be
nefits of the grant in favour of the grantor, arid against thegranteeSf.
But if the words pf 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 boiinds the islands to the eastward of the river,
then the eastern boundary of New-Jersey would be the eas^,
and not the wesfs'tde of the river, and all the word^ 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 rhusinow he 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, bul also the " free use of all bays, rivers, and waters, leading
unio, 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
and estate in ihe waters," lo secure to the proprietors the fran
chises of navigation, free trade, fishing, and all dth^r liberties
and privileges of the like nature, so ks 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 fruhs and effects of if are granted also, and shall pass ihclu-
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."f
Water, strictly speaking, is not the subject of grant, for it is a
* 4 Mass; Rep, 196 7 Johns. Rep, 217. 6 Cfanch, 237.
^ t Sbep. Touch. 85. Co. Lilt, 56 2 Black, Com; 36.

37
"moveable, wandering thing,"* and is only the subject Of a tem
porary, transient, usufruclory 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 tlie 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 navigs^iion 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 lo the whole human race by the law
of nature,, and is so recognized by the Ikw of nations. It means
an unfettered right of navigation to be secured tp the grantees,
their heirs and assigns, not aubje,ct to restriction, regulation, or
taxation by a foreign legislature, or a foreign corporation. But
if New-Jersey has no property in these waters, then tnight 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 from
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 is claimed by the great mass
of the people, in virtue of the common law; but a particular
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 thatth^ right
to regulSte fisheries by legislative acts also resulted to New-Jer-
* 2 Black. 18.

38
sey. Bul if New-Jersey has no right or title to the river, then
none of her people can own or possess fisheries adjoining thgir
own farms, nor could the state claim them, or even regulate thera
by law. New-Jersey and her people are all dependant on New-^
York for the enjoyment of ihese granted rights,
' And what is the construction! vvhich the law will put on the
words " or otherwise" .'' Are they to he rejected.^ Were ihey in
serted through ignorance or haste.'' Not so: all these patents,
granls, and conveyances were drawn with the utmost care and
precision, under the direction of the la,w 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 wiihin 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 tp be granted..
As this instrument also conveyed the regalia, right of govern
ment, and jilrisdiction to the proprietors, that jurisdiction ex
tended not Only over the lands 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 protjiction. After this
grant, it was not competent for the duke to exercise a jurisdic
tion, or permit others lo exercise it, which might impair or de
stroy the rights thus granted away. But to convey to,his colpriy
of NewrYork an absolute right to the waters, or to extend iheir
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-Yprk. The duke himself coulij not
lawfully have exercised such- authority,, much less could his
agents, or the members pf the cplpnial government of New- York
established by him. The truth is, that after this grant of 1682,
no absolute property in lhes6 waters could remain in the duke
or his colony. Dr. Rutherfprlh, vol. i. p; 72, of his tl?fealise 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 ancl limitation of his right. ,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 ;
and whether they are exclusive or concurrent in regard to New-
York ; the 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 with 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
NewrJersey 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, lo incorporate the Associates
of the Jersey Company, sec. 3, it is enacted, that they shall have
the privilege of erecting or building docks, wharves, and piers in
the Hudson river and bays, as far as ihey may deem it necessary.*
The act of 25th January, 18L1, has this recital: " Whereas the
slate of New-York do unjustly claim ajurisdictio_n exclusively of
the state of New-Jersey over all the waters between the shores
of the two slates; and whereas the 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 slates of New-Jersey
, and New- York, in all cases whaisoever not prohibited by the
constitution oj any law of the United States;"f The^ame princi
ple is uniformly asserted in all the statutes which have been
passed on tliis subject. New-Jersey, from its first settlement, has
been in possession of and has used all these waters, as belong
ing lo her of right, for the, purposes mentioned in the grant; and
as long as chartered rights and solemn conveyances stand for
any thitig she*must be considered as well warranted in making
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 property, and of
*¦ Bloom. Etl. 128,' t R«v, taws 547 S.

40
our citizens lengaged in commerce, their vessels, boats, and ships.
This right of jurisdiction has also been expressly asserted by
the statute establishing the boundaries of the cpunty of Bergen.
In the opinion of Judge Washington (as we shall hereafter s|iew)
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 shfe 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. All this she might have done from the
eariiest times until the adoption pf the present constilntion of
the United Slates. This greatnational charter,, andthe indepen
dence and intelligence of the judiciary department, has recently
been fpund to afford a substantial protection; but the, necessity.
of recurring to it, furnishes a striking illustration of the condi-"^^
lion to which we might have been ,r«duced, and may yet be re
duced in matters not wiihin the scope. of that constitution, if the
high and unjust pretensions of N^w-York should be silently ac-'
quiesced in by New-Jersey. To give effect to these grants, we
must goi 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, still 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 siipiilaled privileges at, the
time of the grants, and from that lime to this, fortin 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 paiticipate 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 b6 sepured
in these most important rights, by a liberal construction accor-

41
ding to the approved principles of public law, and the true in
terest and meaning of all the parties to this interesting transac
tion at the time.
Hitherto we have considered the granls of the duke of York
to the proprietors, and particularly the great confirmatory instru
ment of 1682, as private consequences, to be qonstrlied by the
rules adopted in the construction of deeds by the common law.
Bul 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 therti 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 coristhuie 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 tl^e 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 ^ants. The country
was acquired by the British monarch mder the jus gentium, or
the law^s 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
wfhole civihzed worid. To construe these solemn instruments now,
otherwise than to effectuate the intent of the parties upon the
F ' ,

42
nioslHberaJ principles, and in favour of the colonists, would be
a manifest breach of public faith, as we have already shewn.
This grejat natural boundary between New- York and New-^r
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-York, in the benefits of the dividing wa
ters, the reverse is apparent on the face of the record which se
cured tp us at least the use iherepf, for all the purposes of "na
vigation, frejC trade, and fishing, or otherwise." And what other or
differenluseof the waters, it may be asked, could remain or re-
jsult to New-York ?
In the case of Handley 's lessee against Anthony,* the Supreme
Court of the United States adopts one posjtion. These are the
words of C. J. Marshall, " in great questions which concern the
boundary of stales, where great natural boundaries are esta
blished in general ler^s, with a view to public convenience and
the avoidance of controversy, we think the great object where it
can be distinctly perceived, ought not lobe defeated by these
tibhnical 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 frpm
the dividii^g waters, and confine her either to high or low water
mark on her own shores, (which however we have denied to be
true,) still we may claim it by the more liberal rules of national
law. J
Adopting ihe rule of ihis law as tp river boundaries, the court
says, f' when a greait river is the boundary between two natipnS
or states, if the original property is in neitlier, and there is
no convention, respecting it, eaph extends to the middle of the
river."j 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 Cranch, 382. \ Ibid. 379,

43
Jersey the unqualified use of the river, fpr all the purposes of
" navigation, commerce, fishing, or otherwise." 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 pf the duke, (for which she can shew no tide,) could she,
as representing the duke, exclude New^ersey in the face of his
own solemn conveyance and convention .^ In a political view,
the rights claimed by New-Jersey were essential lo 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 to run out into the water by
artificial means.'' Must she ask permission first from her power
ful neighbour.'' Until the constitution of the United Stales pro
vided for the public defence, New-Jersey might have found her
self dependant on her own exertions in this vitalconcern.
The rules laid down by the Supreme Court of the United
States, are taken from Vattel, lib. i. ch. 22.
In section 266 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 settled in those countries, it is sup
posed that they bOth came there at the same time, and in this
case the dominion of each will extend to the middle of the river,"
New- York could never pretend to any thing more than a si
multaneous colonization with New^ersey.
Admitting that the Dutch were the first whp actually planted
a colony in these parts, yet that colony extended over lo New-
Jersey. The eastern part of New-Jersey was setded by the
Dutch, at the same time 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 when 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 {Vattel, lib. i. ch. 22. sec. 266) lays
down this principle, " if a nation fixing itself on a riv^er has
made any use of the river for navigation or fishirtg, 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 use of the river lo 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 incidentSj and a grant to a
colony _^r such uses carries with it both properly and jurisdiction,
This reasoning is adopted by Judge Washingtpn, 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 which remained for New-York,
and dlso a property in the water, for the uses and purposes ex
pressed, namely, of navigation, free trade, fishing, and foi 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 lyhole was originally acquired ; aOd that
these rights must be extended at least lo the middle of the ri
vers and waters. Every principle of pubhc 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 rriade the water and the dry land for the use
and benefit of mankind.
Vattelj as lo jurisdiction, in the same chapter says, " the em-
pirie 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."*
• Vaitel, 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, adfilum aquce, cannot be sus
tained upon the reasoning before suhmitted, there still remains a
ground which condiictsus lo the same result, and appears to be
conclusive. The grant of the king to the diike is not only of the whole
country east, and south, and west of the Hudson, but of ihe ri
ver Hudson itself in terms, and of all other rivers, bay?, 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
ihem to the principality granted to the duke in .\merica, was
never doubted in England at the time, nor in America; but on
the contrary, the grant, together whh 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 stales are de
rived from this patent. But if a doubt upon this point could be
raised by New-York, the result will be the same. The duke
succeeded to the crown of England in the year 1685. ,
If tbosei, waters did not pass to him by the grant of king
Charles his brother, they remained in the crown of England, and
descended therewith to ihe 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- dgke were
merged by that event in the supreme royalty over ah the realm of
England and her.foreign plantations which fell to him by here
ditary succession and descent.
By the common law of England, the king.yMrc coronm, 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 pf 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. 162-5. Harg. L, T. 10, 1 J. 6 Com. Dig. title Prerogative 55

46
crown, to grant them either to individuals or to corporations.
The country was so rapidly growing into pohtical 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 eslabhshed by him, are hmiled 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 grarits must have been fully as
certained, set up no pretension of ownership to the waters in
coniroversy 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 lo 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 qf England. It gives the city boundary, and assigns to it
". all Manhattan Inland, 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 unappropriated
land on Long Island from high water mark to iow water mark,
fronting the said city." It meddles not with the dividing waters.
As early as 1683, an act or ordinance had passed laying off
several counties, and ascertaining their respective boundaries.
But the settlement of the country had been so rapid, that in
1691 it was found necessary to revise this act, and establish-lhe
county boundaries by an act of the colonial legislature. This

47
being a revised sta,iu(e, was unquestionably well considered, and
therefore is of greatweight, for if in the infancy of the colony,
w^n 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 lo 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 gel up beyond the north boundary line be
tween the two colonies, from the Delaware lo the Hudson,
namely, when they had a right lo pass over to the west side of
the Hudson, then, and not till then, do they attempt lo lay out
counties on the west side of the river. ,
The statute declares the county of Orange to begin on the
New-Jersey Hue, " on the west side of the Hudson, and lo ex
tend lo 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, lo 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 and County of
New-York,

48
lute 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<||5;
presenlative and the colonial legislature, upon the very point in
controversy ; proving beypnd all doubt, that when this law was
enacted, New-York made no claim lo 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 Simitb, 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 hsd been relinquished by the
province of New-Yprk, 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 lo 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
sent" were probably introduced because he intended to include
Staten Island, which the learned historian well knew was not
anciently or rightfully a part of New-York, bul 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 pf the great river Hudspn pver tp high or low
water mark on the western side, and the bay of Nevv-York and'

49
all the rest of the dividihg waters, would he have committed
against New-York so gross and injurious an error as lo limit her
iQ^he 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 look 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 southwflrd 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 lo them; they only venture to extend the jurisdiction,
provided it belongs to them^ which is about as effectual, 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 ihis non-claim on the^part of New- York,
was the actual possession.' The, possession of vyaters can only
be made manifest by their use, and by the overt acts done upon
their shores. The use of these waters for navigation, commerce,
fishing, and for all the purposes to which water can be applied,
had been in the proprietors and inhabitants of New-Jersey from
its first settlement, withoiitinlerruption or disturbance from New-
York ; and the possession thus taken of our half of the river
still continues. The fisheries 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 effectual opposition having been made thereto by
New-York. The proprietary governors of New-Jersey, and the boar||of
proprietors after its establishment, exercised every act of owner
ship of which the subject matter was susceptible.
As eariy as 1669, Governor Carteret granted a licence to
Peter Hetfelsen, to be the only and common ferryman from
Communipau to New- York.
In 167^, a ferry license was given by the same governor
lo Job Simerson, between Bergen, Communipau, and New-
York. Other licences 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 Bedlow's Island,
uttdev &wz.u&n\.[{oxa 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 wharves 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, they built wharves which extend into the river far be
yond low water 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 suiito 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 determination.
But 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 ihe Hudson to
low water mark on ihe west 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 the 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 hmits 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 al 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 Huds.on; and as it appears lo be mainly re
lied on by the corporation of New-York, it may merit a more
full examination. It was granted by the king's governor of New-
York, in the reign of George the II. 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, lo whom the king
granted the supervisorship or custody of this royal river : and un
less this charter does legally grant the river to the corporation

52
in fall propriety and ownership, it can have no influence on ,the
matters in dispute. Our cpnstruclion 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 this river to a corporation. It is a great river, an
arm of the sea. It was essenlial.lo 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'toa newly 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 lo 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 hs do
mains for a longer period than thirty years. After this great event

53
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 ft, 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 ab 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 New-York, and those words
which betray a sinister attempt to extend its limits over to the
west side, can legally operate only lo place the river under ihe
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, the 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 bailiff, and the process for that purpose was
directed to him."*
Lord Hale, in his celebrated Treatise de Jure Maris,\ ex
plains to us the nature of the office of water bailiff, and recites
the old cases which might have given rise lo 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 lo look to ihe 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. Hep; p. 9, tHa.L.T.23.

54
liament of 17 Richard II. ch. 9, the conservancy of the river
Thames, from Stainsbridge to Medway,Js 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, tp 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
ihe river Thames to the corporation of London. But it was soon
discovered that even a general grant of the river, and ol the 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 pf 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 charier,
by which the king granted to them solum ei 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 ihe soil of the river."*
This is whhoui 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 hid down, and acted npon, 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 EHzabeth. Davi^
gives us the third resolution of the court thus: — "It was resolved
that no part of ihe royal fishery passed by the grant of ihe land
adjoining, and by the general grant of all fisheries, for this royal
fishery was not appurtenant lo 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 lime that the corporation of Bergen asserted
« Davis Rep. 154. Jbid. 157.

55
their supposed rights to the river, tinder their grant from- the
proprietors, by appointing " water bailiffs," who also had grant
ed lo 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 to apprehend offenders on ihose waters ; and in
the execution of their office they did apprehend men from the
colony of New-York fishing on the flats.
In the year 1721,* the proprietor of Pennsylvania claimed
either the whole or a pan of the river Delaware, before the lords
commissioners of trade and plantations ; a board created in Eng
land to receive and report lo the king and council, in all cases
of limits and boundary arising in the colonies. This tribunal re
ferred the claim lo 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 ihe proprietor of
Pennsylvania, and having examined the grants of New-Jersey
and Pennsylvania, they were of opinion " ihat no part of ihe
Delaware n'^er, or the islands lying therein, were within </ie
granting words of the patents and grants, bul that the right to
the same still remained in ihe crown."
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 «aid
waters did not pass, they remained in the crown al 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 to the filum aqua, or chan
nel of the waters. The principles already established conduct us
at once to this result ; for if these waters belonged to the Duke
of York when he became king, and were by that event re-au-
nexed to the crown by his accession thereto; or if they did not
" 1 Cbalmcp's Opinions 59.

56
pass by the 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
states of which the river was the boundary, and vvhich 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 lo 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 which 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 war,
without the aid of this principle ; because ihey were no part of
her former territory, but part of the domain of the crown, mere
ly flowing betv^een the two states. It cannot be justly alleged
or maintained that the stale of New- York is entitled lo 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 which belonged to ihe 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 stale bf
New-Jersey. Before the revolution ihe 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.

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 pari thereof. He 'retained them in his own hands.
Hence it is manifest that New-Jersey had a better 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 lo pass this statute was controverted, and the old granls
to and from the Duke of York were before the court for con
sideration. On the sixth of August, 1680, 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, &c."
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
a\torriey md solicitor general of England, before, recited. Judge
* Vid. Natianal Gazette, May 3d, 1825,
H

58
Washington, in his comment on these grants says, "in this stale
of things, the revolution was conducted to a successful issue,
when his Britannic majesty relinquished all claims, not only to
the government, but lo his proprietary and territorial rights to
the same. The right of the crown to the bay and the river
Delaware being thus extinguished, it would seem id follow, that
ihe right claimed by New- Jersey in those waters was 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
ihe 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 ihe 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, free
trade, fishing, or otherwise. The only objection which could have
been opposed to ihose acts of ownership under this grant, was,
ihat ihe duke had himself, no title to the bay and river Delaware
under ihe royal grant to him. But the^ inhabitants enjoyed those
privileges. The use of the bay and riiser amounted lo 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 as
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 ihe duke had no right to make, was such an
appropriation of the waters as was ripened into an indefeasible
title by ihe 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 of
the Delaware, divided with her upon the most liberal terms.
Upon some, or all of these grounds, we think that the claim

59
set up by the legislature of New-Jersey to one half of the divi-
4ing waters, is fully sustained, bpth on the principles of muni-
wpal and public law. The great principles of justice and equity
too, which should govern in contests of boundary and limits be
tween independent and friendly states, come in aid of the legal
title. To the acquisition of a full property in these waters, New-Jer
sey 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. Ntew-York gaiijed 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. Op 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 granls before cited. Staten Island, Long or Napau
Island, and Manhitas or Manhattan Island, were all well known
by 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 Staien Isl
and. Had it been intended to exclude Staien Island fronn 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 Staien 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, de-

60
signed to occupy the 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 loo 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
river. The waters between Slaten 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 lo 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
KuU, or river of the bay, and a pari Achier KuU, or black bay,
since corrupted lo Arthur Cul's bay. To the west of the Kills,
the Sound is described in the Indian deed lo the Elizabethtown
people, made October 28th, 1664, as " the river that parts Sta
ten Island andthe main."
Governor Nichols, in his confirmaiiob of that deed, made the
ensuing December, it is true, changes the word " river," to
" sea f. 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
main sea. The Monmouth patent granted by Nichols, April 8ih,
1665, describes the land granted, as " beginning at a certain
place, commonly called or known by the name of Sandy Point,
and so runnmg along the bay, west north-west, till it comes to
the mouth of the Raritan river, &c." No grant or geographical

61
description known to us, designates any part of the waters be
tween Staten Island and the main land as the " main sea," nor
can we persuade ourselves that they are, intended by this ex
pression, in the granls of the Duke of York. If the phrase was
not meant as we suppose to be synoniraous 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
protested 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 ,lwo 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 granls, satisfactory to the parties concerned, but is explained
by other circumstances. The long continued possession then,
having been wrongful from ihe 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 within 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 4th August, 1718, granted
a charter 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 Staten Island side of the sound, without re-

62
striclion, and without the intimation of a doubt that the limits o^
the province extended so far. Under this charier, Perth-Amboy
was a port of entry under the king of England; it was declared
*a free port by the slate 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 KuU have never been cMimed by New- York, and this fact
is admitted by the commissioners of New- York, in the corres
pondence pf 1807.*

In addition lo the article under the first head, it may be re
marked, that in the correspondence betvveen the commissioners
on the part of the two states in 1807, it is asserted by the com
missioners of New-York,f " ihat 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-Yprk and New-Jersey had a
free and common use equally of the waters in question, to take
fish within the same, and fpr 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 Du'^e of York to the twenty-
four proprietors, in 1682, enjpyed "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. + Ibid.

63
3a the Hudson river, from Slaten Island northward, and directly
opposite to the city of New-York, built wharves extending far
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 constitution, congress, on the
4th August, 1790, passed the act dividing the stales into districts
for the collection of revenue* &c., 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 Buriington) 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, Middlelown-Point, Elizabeth-Town, and
Newark shall be ports of delivery, and a collector for the district
shall be appointed, to reside at Perth-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 lo " waters theretofore wiihin the
jurisdiction of New-Jersey," by which words the jurisdiction of
that part of the Hudson or North river was assigned lo the col
lector of Perth-Amboy in New-Jersey. By another act of con-
gress,t passed Sth March, 1806, 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 States." After the passage of this act, vessels bound to and
from foreign ports laded and unladed at Jersey, clearing and en-

terinK at Perth-Amboy, and vessels from New-York, merely
crosig the North 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. It thus appeal.
that by the act of .1790, giving to the collector of New-York
» Vol, 1.246. tVol.viii.23.

6^
jurisdioti(A over all the coasts, rivers, bays,:isnd harhoiirs of^the
said s^tate', no jurisdititionjjassed or was claimed ofiie walers Qji|
the west side of the Hu^sfin contiguous to JN;ew-Jersey, whil'
by the same act the assignment to the cbWector of Perth-Ambo;
of all the waters theretofore within the jurisdiction 6f New-Jeif^
sey passed the control of those waters asluch,and as such they?
were occupied without opposition.
v: As the port of Jersey was twenty-five -or thirty miles dista
frpm Perth-Amboy, and great iricpnvenienc'c was ihelreby occa-^
sioned in ehteringandr clearing Vessels, an application was made,
to congress to make Jersey a JiOrt of entry. This was opposea
by the secretary of the navy, as being too near N^iYork; an$
by'his suggestiori, a plan was adopted to annex Jersey to the
5pdrt of Nejv-York ; this plan, being first sanctioned by exprel^
consent of the slate of New-Jersey, manifested by resolution of
the legislature directed to her senators and representatives ia
congress. An act was passed by congress,* March 2, 1811, bjs
which il is enacted, " that all that part Of the state of New-Jersej''
which lies north and east of Elizabeth-TOwn arid Slaten Island^
be, and the same is hereby annexed lo the district of New-York;
that an assistant Collector, to be appointed and commissioned by
jfthe president of the United Slates, shallleside at the town of
Jersey, who,,shay have^ji&wer to enter and clear yessels, in like
manner as the collector of New-York is authoifzed to (l6, but
such assistant collector' shall ne^^ertbeless' act iq conformity to
.such instructions and regulations as he shall from time lo tim^
receive from the .collector of New-York." Under this act, the
control over the waters of the Hudson, previously exercised b"^'
the collectoH of the port of Perth-Amboy, as part of New-J«rs^^
passed to the control of the cOllectpr pf New-Yprk and bis as
sistant at Jersey. The words nf the aits of 1790, 1806 and 01ii;
and the proceedings and practice under then? fully sustal^thei
fact, that before the year 1790, and since that time, NewrJersey'
possessed jurisdiction over the waters of the HutlsOn opposite
her shores. By the last act for collection of revenue on impoftl
and tonnage, and by consent of New-Jersey ih? jurisditSjon Js!
fihang^d, but it is changed for no other purpose,
«Vol.S.361,

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