Roger B. Taney

“ If there was in the people of New Jersey a common right of fishery, the legislature, exercising plenary sovereignty, could, unquestionably, dispose of it, modify it, lease it, and exercise every act of ownership and control over it. Of course, the lease of it, under the statute, to the defendant, would be good. The use and occupancy of the premises by the defendant, is only commensurate with that right; he does not pretend to take absolute possession of the soil; he cannot be ejected from a possession commensurate with his right. ”

“ For when the revolution took place, the people of each state became themselves sovereign; and in that character hold 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 made by their authority must, therefore, manifestly be tried and determined by different principles from those which apply to grants of the British crown, when the title is held by a single individual, in trust for the whole nation. ”

“ In a grant by the king, of prerogative rights to a subordinate governor, the regalia thus granted continue attached to the government, in the same way as when they were in the hands of the crown. In the grant of the right to an individual, they become mere private property-private franchises. ”

“ The point upon which different opinions have been expressed, is whether, since Magna Charta, 'either the king or any particular subject can gain a propriety exclusive of the common liberty.' For, undoubtedly, rights of fishery, exclusive of the common liberty, are, at this day, held and enjoyed by private individuals under ancient grants. But the existence of a doubt as to the right of the king to make such a grant, after Magna Charta, would, of itself, show how fixed has been the policy of that government on this subject, for the last six hundred years ”

“ This grant, parting not only with the soil, but with the government of the country granted by him, transcends all his prerogative rights under the common law of England. He, as king, cannot grant a right of sovereignty over any part of England. This right to part with and convey the property and sovereignty of government of this territory, must be traced to the great principles of national law, applicable to every nation, to every sovereign in whom is the power of disposing of any property which the nation has acquired either by conquest or discovery. ”

“ A several fishery and a common fishery are utterly incompatible with each other. The former is founded upon and annexed to the right of soil; and when that right of soil is acquired by an individual, the several fishery begins, and the common fishery ends.
Did the proprietors, then, by the surrender of Queen Anne, in the year 1702, relinquish any rights of private property in the soil, derived under the charter of Charles II.? ”

“ For, according to the principles of international law, as understood by the then 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 nation by which any particular portion of the country was first discovered. ”

“ The decisions and authorities referred to apply more properly to a grant of some prerogative right to an individual, to be held by him as a franchise, and which is intended to become private property in his hands. The dominion and property in navigable waters, and in 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 intrusted to his care for the common benefit. ”

“ If these regalia were, by the royal grant, converted into mere private franchises in the hands of individuals, as private property, detached altogether from the government, as we have admitted to be in the case with the soil and private rivers, then they were not surrendered. If they continued concomitants of the government, then clearly they were surrendered. What is a surrender but a re-transfer? If the regalia pass incidentally, by the creation or transfer of the sovereign power, they will, of course, pass by the surrender or re-transfer thereof. A king de facto takes the jure regalia. ”

“ So, the grant of the soil under water, which carries with it a several fishery, is subject to the use of the water for the public purposes of navigation, and passing and repassing; but it is nowhere laid down as the law of the land, that a several fishery is a part of the jus publicum, and open to the use of the public. So long as the fishery remains ungranted, it is common, and may be used by the public; but when granted to individuals, it becomes private property as much as any other subject whatever ”

“ But this doctrine was not recognised by the court. Lord MANSFIELD said, the rule of law is uniform. In rivers not navigable, the proprietors of the land have the right of fishing on their respective sides, and it generally extends ad filum medium aquoe. But in navigable rivers, the proprietors of the land on each side have it not; the fishery is common; it is prima facie in the king, and is public. If any one claims it exclusively, he must show a right. If he can show a right by prescription, he may then exercise an exclusive right ”

“ But HEATH, Justice, ruled otherwise, and said, a fishery was divisible; a part may be abandoned, and another part of more value may be preserved. The public may be entitled to catch floating fish, in the river Burnham, but it by no means follows, that they are justified in dredging for oysters, which may still remain private property; and although a new trial was granted upon another point in the case, the doctrine as above stated was not at all impugned by the court of king's bench. ”

“ They establish, that by the common law, the king is the owner of all navigable rivers, bays and shores. That he owns them in full dominion and propriety, and has full power and authority to convey the same; that he may grant a several fishery in a navigable stream, and the common law has annexed only two limitations upon this power: that these waters shall remain highways for passage and navigation, and that whilst they remain ungranted, there is a common right of fishery in them ”

“ To grant the soil, so as to give an individual the right to take it after such a change, has been made a nice question; and it has been stated, that a grant, to have this effect, must be specially formed. Harg. 18; 2 Anst. 604, 609. But why need it be so specially formed; if the king can at once grant, so as to vest in an individual the soil, and divested of all common use before the change takes places?
Common of fishery is a right which may be specially pleaded, and cannot be traversed. ”

“ These acts authorize the leasing of those flats, or land, or soil under the water, to any individual, and not to the riparian owners of the soil only, but to any one who shall pay the state a certain annual rent; and have actually leased to the plaintiffs in error the premises in dispute, for a term of years, none of whom are stated to be the owners of the adjacent shores. If the legislature of New Jersey have the power to lease for years, they may do so for life or in fee. ”

“ With respect, however, to the right of fishery, there is, in my judgment, a marked distinction, both in reason and authority, between the right in relation to floating fish, and the right of dredging for oysters. The latter is entirely local and connected with the soil. There are natural beds of oysters, but in other places, there is a peculiar soil, adapted to the growing of oysters. They are planted and cultivated by the hand of man, like other productions of the earth ”

“ A subject may acquire the property of navigable rivers and the soil, and of specific localities in the sea itself, by grant or prescription, as he may many other prerogative rights of the king of a like character ”

“ The government itself embraces all these high political powers, and is senseless without them. All the minor jure regalia concerned the government and the inhabitants. The protocol is referred to, Leaming & Spicer 590, 596, wherein it is stated, that the rights in the seas cannot well be circumscribed. The rights of the seas, there referred to, were wrecks, royal fish, &c.
Now, any one familiar with the jurisprudence of New Jersey knows that the proprietors never claimed or pretended, after the surrender, to claim these rights. ”

“ It cannot surely be necessary to resort to argument or authority, to prove that the power of the king to make grants to his subjects, either of lands or franchises, in the waste and wilderness province of New Jersey, in 1654 or 1674, was at least as extensive as the power he then possessed to make similar grants within the realm of England. ”

“ And should it be admitted, that the right to fish for floating fish was included in this public right, it would not decide the present question. The premises in dispute are a mud-flat; and the use to which it has been and is claimed to be applied, is the growing and planting of oysters. It is the use of land, and not of water, that is in question. For the purpose of navigation, the water is considered as a public highway, common to all; like a public highway on land. If land over which a public highway passes, is conveyed, the soil passes, subject to that use ”

“ Here, it was introduced in the royal grant itself. The great principles of British liberty must be considered as accompanying this royal charter, and it must be construed accordingly. It is matter of history, that the Stuarts, to encourage emigration, introduced into these colonies the broadest principles of British liberty. The fundamental constitutions of New York show this. The people have always appealed to Magna Charta as the foundation of American as well as British liberty. ”

“ In that case, the court, after stating it to be a principle of universal law, that an uninhabited country, if discovered by a number of individuals who owe no allegiance to any government, becomes the property of the discoverers, proceed to say, that, 'if the discovery be made and possession taken under the authority of an existing government, which is acknowledged by the emigrants, acknowledged by the emigrants, it that the discovery is made for the benefit of the whole nation ”

“ Adjudications once deliberately made, are held as forming part of the settled law, notwithstanding this occasional interference with the rule. An occasional deviation does not impair the character of a fixed rule. When an adjudication is once deliberately made by a court competent to settle the law, the power of disturbing or remodelling it does not belong to the tribunal of a foreign government. If such a point came up in the supreme court of any other state, upon the local law of New Jersey, and it might come up incidentally, such a decision as in Arnold v. ”

“ All the cases establish the power of the king to make the grant, or the right of the subject to hold by prescription, which pre-supposes a grant from the crown as the only lawful commencement of the title. ”

“ Under the maxim stare decisis, these adjudications form part of the unwritten common law. But they may, occasionally, when found not to work well, be modified. This fiexibility is made to harmonize with the stability resulting from the application of the above maxim. The power of reconsidering and new-modelling adjudications will be exercised with great delicacy and caution. ”

“ If he had not such a power, however, it serves to strengthen the construction of the royal grant that he did not intend thus to convey the sea and its arms by this charter. It has been shown, that all the uses to which these public waters can be applied are public and common. It is only when the waters are excluded from the soil by alluvion, wharfing out, &c., that it becomes private ”