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not be maintained.

For, although the various misdemeanors, enumerated by sir L. Jenkins in his charges, may have been considered as admiralty offences at that period, either under the common law or the ancient ordinances and statutes of the admiralty, it remains yet to be shown, that they became such, and were cognizable by the judiciary of the United States, independent of some act of the national legislature to render them so. Many of those offences are already incorporated into the criminal code of the United States; and no person, it is presumed, will question the power of congress, by further legislation, to include many other offences, to which the jurisdiction of the admiralty in England extended at the period above alluded to. But it is by no means to be conceded, that because offences, of the nature we are now considering, may righfully belong to the jurisdiction of the English admiralty, the power of that government to regulate her fisheries being unquestionable, congress has a like power to declare similar acts, or any acts at all, done by individuals in relation to the fisheries within the limits of the respective states, offences against the United States. There are, doubtless, acts that may be done upon the navigable waters of a state, which the government of the United States, and that of the state, have a concurrent power to prohibit and to punish as offences-such, for example, as throwing ballast into them, or in any other way impeding the free use and navigation of such rivers. But we hold that the power to regulate the fisheries belonging to the several states, and to punish those who should transgress those regulations, was exclusively vested

in the states, respectively, at the time when the present constitution was adopted, and that it was not surrendered to the United States by the mere grant of admiralty and maritime jurisdiction to the judicial branch of the government. Indeed, this power in the states, to regulate their fisheries in navigable rivers and waters, was not, in direct terms, questioned by the plaintiff's counsel, and yet their argument upon this point, when followed out to its necessary consequences, amounts to a denial of that power.

As to the ancient criminal jurisdiction of the admiralty, in cases of misdemeanors, generally committed on sea or on waters out of the body of any country, we have very respectable authority for believing that it was not exercised, even if it existed, at the period when the constitution of the United States was formed; and if so, it would seem to follow, that, to the exercise of jurisdiction over such offences, some act of the national legislature, to punish them as offences against the United States, is necessary. We find, from the opinions of learned and eminent counsel, who were consulted on the subject, that misdemeanors, committed upon the sea, had never been construed as being embraced by the stat. 28, H. 8. c. 15; and that the criminal jurisdiction of the admiralty, except as exercised under that statute, had become obsolete; so that, without an act of parliament, they could not be prosecuted at all. 2. Browns C. and A. law, app'x, 519 to 521. If then it could be admitted that congress might legislate upon the subject of fisheries within the limits of the several states, upon the grounds of the admiralty and maritime juris

diction, it would seem to be a conclusive answer to the whole of the argument on this point. But no such legislation has taken place, and, consequently, the power of the state governments to pass laws to regulate the fisheries within their respective limits, remains as it stood before the constitution was adopted. Secondly. The next general question to be considered is, whether the boundaries of the state of New Jersey include the place where the Hiram was seized whilst engaged in dredging for oysters.

The grant from Charles II., to his brother the duke of York, of the territory of which the present state of New-Jersey was a part, dated 12th March, 1663-4, was of all that territory lying between the rivers St. Croix, adjoining NovaScotia, and extending along the sea coast, southerly, to the east side of the Delaware bay, together with all islands, soils, rivers, harbors, marshes, waters, lakes, fishings, huntings, sportings, and all the royalties, profits, commodities, hereditaments and appurtenances, to the same belonging and appertaining, with full power to govern the same.

The grant of the duke of York, dated 24th June, 1664, to lord Berkley and sir Geo. Carteret, after reciting the above grant, conveys to them all that tract of land, lying to the westward of Long Island and Manhatten Island, bounded on the east, part by the main sea, and part by Hudson's river," and hath upon the west Delaware bay or river, and extended southward," &c. "with all rivers, fishings, and all other royalties to the said premises belonging," &c.

There is no material difference between these grants, as to the boundaries of New Jersey, on the

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westward, and we are of opinion, that although the rule of the law of nations is, that where a nation takes possession of a country, separated by a river from another nation, and it does not appear which had the prior possession of the river, they shall each extend to the middle of it; yet that, when the claim to the country is founded, not on discovery, and occupancy, but on grant, the boundary on the river must depend upon the just construction of the grant and intention of the parties, to be discovered from its face. Taking this as the rule, we think that the claim of New Jersey, under these grants, to any part of the bay or river Delaware, below water mark, cannot be maintained. The principle here suggested is, we conceive, fully recognized and adopted by the supreme court, in the case of Handly's lessee v. Anthony, 5 Wheat. Neither do we conceive that the limits of the state can, by construction, be enlarged by virtue of the grant of all rivers, fishings, and other royalties, which expressions ought, we think, to be confined to rivers, fishings,and royalties, within the boundaries of the granted premises. This appears to have been the opinion of the crown lawyers, who were consulted, more than a century ago, respecting the boundaries of New Jersey and Pennsylvania; and this, too, after hearing counsel upon the question. Their opinion was, that the right of the river Delaware and the islands therein, still remained in the crown. See Chalmer's opinions.

Notwithstanding this objection to the title of New Jersey, whilst a proprietary government, to any part of the bay and river Delaware, it seems that the proprietaries of West Jersey claimed, if not the

whole of the river, a part of it, at least, below low water mark, as far back as the year 1683, as appears by a resolution of the assembly of that province, in that year," that the proprietary of the province of Pennsylvania should be treated with, in reference to the rights and privileges of this province, to or in the river Delaware."

By certain concessions of the proprietaries, freeholders and inhabitants of west New Jersey, sometime about the year 1676, they granted that all the inhabitants of the province should have liberty of fishing in Delaware river, or on the

sea coast.

In 1693, a law passed in that province, which enacted that all persons, not residing in that province or within the province of Pennsylvania, who should kill or bring on shore any whale, in Delaware bay, or elsewhere within the boundaries of that government, should be liable to a certain penalty.

In the year 1771, another act was passed for improving the navigation of the Delaware, and, in 1783, another act was passed, which annexed all islands, islets and dry land, in the river Delaware, belonging to the state, as low down as the state of Delaware, to such counties as they lay nearest to. And, in the same year, the compact was made between the states of New Jersey and Pennsylvania, by which the legislatures of the respective states were authorized to pass laws for regulating and guarding the fisheries in the river Delaware, annexed to their respective shores, and providing that each state should exercise a concurrent jurisdiction on the said river.

These acts prove, beyond a

:

doubt, that the proprietaries of west New Jersey, from a very early period, asserted a right to the river Delaware, or to some part thereof, below low water mark, and along its whole length and since the western boundary of the province, under the grant of the duke of York, was precisely the same on the bay as on the river, it may fairly be presumed, independent of his grant, to the proprietaries in 1680, and the concessions made by them in the year 1676, that this claim was extended to the bay for the purpose of navigation, fishing and fowling.

In this state of things the revolution was commenced and conducted to a successful issue, when his Britannic majesty, by the treaty of peace, acknowledged the several states to be sovereign and independent, and relinquished all claims, not only to the government, but to proprietary and territorial right of the same. The right of the crown to the bay and river Delaware being thus extinguished, it would seem to follow, that the right, claimed by New Jersey in those waters, was thereby confirmed, unless a better title to the same should be found to exist in some other state. Whether the claim of New Jersey extended to the middle of the bay, as we see, by the compact with Pennsylvania, it did to the middle of the river, is a question which we have no means of solving. But that the proprietors and inhabitants of west New Jersey made use of the bay, both for navigation and fishing, under a claim of title from a period nearly coeval with the grants of the province, can hardly admit of a doubt. This right, indeed, is expressly granted by the duke of York to William Penn and the

other proprietaries of west New Jersey, by his grant, bearing date 6th Aug. 1680. It contains a grant, not only of all bays and rivers, to the granted premises belonging, but also the free use of all bays and rivers, leading into or lying between the granted premises, for navigation, fishing or otherwise. The only objection which could have been opposed to the exercise of those acts of ownership, under this grant, was, that the duke had himself no title to the bay and river Delaware, under the royal grant to him. But the presumption is, nevertheless, irresistible, that the benefits intended to be bestowed by this grant, and which were confirmed by the other acts of the provincial government, before noticed, were considered by the inhabitants of the province as being too valuable not to be enjoyed by them. This use of the bay and rivers amounted to an appropriation of the water so used. Vat. b. 1. c. 22. s. 266: and this title became, as has been before observed indefeasible by the treaty of peace, except as against some other state, having an equally good or a better title.

How far this title in New Jersey may be affected by the grants of the duke of York to William Penn, in 1682, of the tract of country which now forms the state of Delaware, it would be improper in this case to decide. But that the use of the bay for navigation and fishing was claimed and enjoyed by the inhabitants of that province, under those grants, is as fairly to be presumed as that it was so claimed and used by the inhabitants of New Jersey; and we are strongly inclined to think, that if the right of the former of these states to the bay of Delaware was found

ed on no other title but that of appropriation, by having used it for purposes of navigation and fishing, the effect of the revolution and of the treaty of peace was to extend the limits of those states to the middle of the bay, from its mouth upwards. But be the title of the state of Delaware what it may, we are clearly of opinion, that, as between the plaintiff, who asserts and has certainly shown, no conflicting title in the state of Delaware, to the bay, and the state of New Jersey, or those acting under the sanction of her laws, the court is bound to consider that law as a sufficient justification of the proceedings under it, provided the locus in quo was within the body of the county of Cumberland, which is next to be considered.

Third. The third general ques tion then is, whether, admitting the locus in quo to be within the territorial limits of New Jersey, it is within the limits of the county of Cumberland, in which the proceedings complained of took place.

up

The boundaries of this county, towards the bay, are thus descri bed in the act which created it"bounded by Cape May county to Delaware bay, and then Delaware bay to the place of beginning." If the opinion of the court, upon the last preceding question, as to the construction of the original grant from Charles II. to the duke of York, be correct, it would seem to follow, that the western bounda ry of this county extends only low-water mark on Delaware bay, the expression" to Delaware bay," implying nothing more than to the east side of that bay, which the law extends to low-water mark. We mean not, however, to give any decided opinion on this point, be

cause, in the first place, if there be any weight in the above suggestion, (and nothing more is intended,) the legislature of that state, can, at any time, should it be deemed necessary, define, with greater precision, the limits of the counties bordering on the bay; and, secondly, because we think it unnecessary to decide that point in the present case, being clearly of opinion, fourthly, that the objections to this form of action are fatal.

tual or constructive possession of
the thing as well as a general or
a qualified property therein. The
merely being out of the actual pos-
session, is not sufficient to defeat
the action, provided he has a right
to demand it, because the general
property, prima facie, draws to it
the possession. But, if the gene-
ral owner part with the possession
to another person, under a contract
which entitles such person to an
interest in the thing, though for a
limited time, the owner cannot be
considered as having a construc-
tive possession during that time,
and, consequently, he cannot main-
tain an action of trespass for an
injury done to it during such pos-
session of the bailee.
His only
remedy is an action on the case for
consequential damages. (See 1
Chit. Plead. 166, 167, 150, and
the cases there cited; also, 8
Johns. Rep. 337; 7 Johns. Rep.
9, 535; 11 Johns. Rep. 385.) The
Hiram, then, having been lawfully

It is an action of trespass, brought by the owner of the Hiram, for illegally seizing, taking and carrying away the said vessel. It appears, by the evidence, that at the time of the alleged trespass, the vessel was in possession of John Keen, in virtue of a hiring of her to him, for a month, by Hand, who had previously hired her of the plaintiff, and that the time, for which Keen had hired her, had not expired when the seizure was made. The question is, can the plaintiff, under these circumstances, main-in possession of Keen, under a tain this action?

We hold the law to be clearly settled, that, to enable a person to maintain trespass or trover for an injury done to a personal chattel, the plaintiff must have had, at the time the injury was done, either ac

contract of hiring for a month, which time had not expired at the time the alleged trespass was committed, the action cannot be supported.

Let judgment be entered for the defendant.

CIRCUIT COURT OF THE U. S. OCTOBER SESSIONS, 1825.
Present-Judges Washington and Peters.
UNITED STATES vs. JUAN GALBERTO De Ortega.

This was a prosecution under the act of congress, of the 30th of April, 1790, the twenty-eighth section of which, declares, "That if any person shall violate any safe conduct or passport, duly obtained and issued, under the authority of

the United States, or shall assault, strike, wound, imprison, or in any other manner infract the law of nations, by offering violence to the person of an ambassador or other public minister, such person, so offending, on conviction, shall be

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