U.S. Supreme Court
Martin v. Waddell, 41 U.S. 16 Pet. 367 367 (1842)
Martin v. Waddell
41 U.S. (16 Pet.) 367
Ejectment for one hundred acres of land, covered with water, in Raritan Bay, in the Township of Perth Amboy, in the State of New Jersey. The land claimed lies beneath the navigable waters of the Raritan River and Bay, where the tide ebbs and flows, and the principal right in dispute was the property in the oyster fisheries in the public rivers and bays of East New Jersey. The claim was made under the charters of Charles the Second to his brother the Duke of York in 1664 and 1674 for the purpose of enabling him to plant a colony on the continent of America. The land in controversy is within the boundaries of the charters, and in the territory which now forms the State of New Jersey. The territory in the grant, by succeeding conveyances, became vested in the proprietors of East Jersey, who conveyed the premises in controversy to the defendant in error. The proprietors, by the terms of the grant to them, were originally invested with all the rights of government and property which were conferred on the Duke of York. Afterwards, in 1702, the proprietors surrendered to the Crown all the powers of government, retaining their rights of private property. The defendant in error claimed the exclusive right to take oysters in the place granted to him by virtue of his title under the proprietors. The plaintiffs in error, as the grantees of the State of New Jersey, under a law of that state passed in 1824 and a supplement thereto, claimed the exclusive right to take oysters in the same place. The point in dispute between the parties depended upon the construction and legal effect of the letters patent to the Duke of York, and of the deed of surrender, subsequently made by the proprietors.
The right of the King of Great Britain to make this grant to the Duke of York, with all of its prerogatives and powers of government, cannot at this day be questioned.
The English possessions in America were not claimed by right of conquest, but by right of discovery. According to the principles of international law, as then understood by the civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nations by which any portion of the country was first discovered.
The grant to the Duke of York was not of lands won by the sword, nor were the government and laws he was authorized to establish intended for a conquered people.
The country granted by King Charles the Second to the Duke of York, was held by the King in his public and regal character, as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit of the nation, and the Crown, according to the principles of the British Constitution, was the proper organ to dispose of the public domain. Cited, Johnson v. McIntosh, 8 Wheat. 595.
When the Revolution took place, the people of each state became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government. A grant, therefore, made chanroblesvirtualawlibrary
by their authority must be tried and determined by different principles from those which apply to grants of the British Crown, where the title is held by a single individual in trust for the whole nation.
The dominion and property in navigable waters and the lands under them being held by the King as a public trust, the grant to an individual of an exclusive fishery in any portion of it is so much taken from the common fund entrusted to his care for the common benefit. In such cases, whatever does not pass by the grant remains in the Crown for the benefit and advantage of the whole community. Grants of that description are therefore, construed strictly, and it will not be presumed that the King intended to part from any portion of the public domain unless clear and special words are used to denote it.
The rivers, bays, and arms of the sea, and all the prerogative rights within the limits of the charter of King Charles, undoubtedly passed to the Duke of York and were intended to pass except those saved in the letters patent.
The questions upon this charter are very different. It is not a deed conveying private property, to be interpreted by the rules applicable to cases of that description. It was an instrument upon which was to be founded the institutions of a great political community, and in that light it should be regarded and construed.
The object in view of the letters patent appears on the face of them. They were made for the purpose of enabling the Duke of York to establish a colony upon the newly discovered continent, to be governed as nearly as circumstances would permit according to the laws and usages of England, and in which the Duke, his heirs, and assigns, were to stand in the place of the King and administer the government according to the principles of the British Constitution, and the people who were to plant this colony and to form this political body over which he was to rule were subjects of Great Britain, accustomed to be governed according to its usages and laws.
The land under the navigable waters within the limits of the charter passed to the grantee as one of the royalties incident to the powers of government, and were to be held by him in the same manner and for the same purposes that the navigable waters of England and the soils under them are held by the Crown. The policy of England since Magna Charta -- for the last six hundred years -- has been carefully preserved to secure the common right of piscary for the benefit of the public. It would require plain language in the letters patent to the Duke of York to persuade the Court that the public and common right of fishing in navigable waters, which has been so long and so carefully guarded in England, and which was preserved in every other colony founded on the Atlantic borders, was intended in this one instance to be taken away. There is nothing in the charter that requires this conclusion.
The surrender by the proprietors to Queen Anne in 1702 was of "all the powers, authorities, and privileges of and concerning the government of the province," and the right in dispute in this case was one of these privileges. No words are used for the purpose of withholding from the Crown any of its ordinary and well known prerogatives. The surrender, according to its evident object and meaning, restored them in the same plight and condition in which they originally came to the hands of the Duke of York. When the people of New Jersey took possession of the reins of government and took into their own hands the power of sovereignty, the chanroblesvirtualawlibrary
prerogatives and regalities which before belonged either to the Crown or the Parliament, became immediately and rightfully vested in the state.
Quaere. Whether on a question which depends not upon the meaning of instruments formed by the people of a state or by their authority, but upon the letters patent granted by the British Crown, under which certain rights are claimed by the state, on one hand, and by private individuals, on the other, if the