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States, who have never done any thing with it. The question is important to the new States, as involving an attribute of sovereignty, the want of which makes an invidious distinction between the old and new States. In 9 Porter, 571, there is an outline of the argument upon this subject, and the authorities are cited. See also 589, 591. It is not material for me to examine the power of the King of Spain, because after the transfer in 1803, the country became subject to the common law and statute laws of the United States, except as to previous grants.
At page 596, this particular question is examined, and the case in 10 Peters referred to.
It appears, therefore, that the Supreme Court of Alabama studied the subject, and there is no adverse decision in this or any State Court. On the contrary, the decision of Alabama has been sustained by this Court in principle.
A right to the shore between high and low water-mark is a sovereign right, not a proprietary one. By the treaties of 1803 and 1819 there is no cession of river shores, although land, forts, &c., are mentioned. Why? Because rivers do not pass by grant, but as an attribute of sovereignty. The right passes in a peculiar manner; it is held in trust for every individual proprietor in the State or the United States, and requires a trustee of great dignity. Rivers must be kept open; they are not land, which may be sold, and the right to them passes with a transfer of sovereignty. 16 Peters, 367, 410, 413, 416.
It follows from this decision, that the rights over rivers became severed from the rights over property. In Pennsylvania, after the Revolution, an act was passed confiscating the property of the Penn family ; but no act was passed transferring the sovereignty of the State. The reason is, that no act was necessary. Sovereignty transferred itself, and when this passes, the right over rivers passes too. Not so with public lands. The right which New Jersey acquired in 16 Peters, was precisely the right which Alabama claims now. There can be no distinction between those States which acquired their independence by force of arms and those which acquired it by the peaceful consent of older States. The Constitution says, the latter must be admitted into the Union on an equal footing with the rest. The dissenting opinion of Judge Thompson (page 419) is not inconsistent with this.
If these positions are right, the United States had nothing below high water-mark. They might have reserved it in the compact with the State. The third article of the treaty with Spain (1 Land Laws, 57) contains such a reservation. But as it is, the United States have nothing in Alabama but proprietary rights. They cannot put their foot in a State to claim jurisdiction without its consent. No principle is more familiar than this, that whilst a State has granted a portion of its sovereign power to the United States, it remains in the enjoyment of all the sovereignty which it has not voluntarily parted with. This Court, though inexpressibly valuable to the country, is yet a Court of limited jurisdiction. In the Constitution, what power is given to the United States over the subject we are now discussing? In a territory they are sovereign, but when a State is erected a change occurs. sovereign comes in. Where the power of taxation occurs, it is because it has been yielded by compact. 1 McLean's Rep. 337, 339, 343, 344, 354, 371, 374, 378.
The case in 10 Peters, 731, New Orleans v. The United States, sanctions the idea, that the power of which we have been speak.' ing must be held in trust; that the kings of France had jurisdic. tion over the shore, but it was a police power, and used for the common benefit, not as a proprietary right. If the trust be in the State of Alabama, the United States cannot defeat that trust. The right of accretion could not belong to the United States, because it belongs to the adjacent proprietor.
Coce, in reply, insisted, that former decisions of this Court cover this case. The nature of the ground in question is fully shown in 9 Porter, 580, 581 ; that the tide rises one and a half or two feet. In 10 Peters, 667, property similarly situated is de. scribed, where the water would overflow unless confined by
banks. It has been said, that the United States cannot exercise acts of ownership over it; but it is conceded that Spain had, and exercised jurisdiction to the extent of granting it to individuals. 10 Peters, 679, 680, 681; attorney-general's opinion, 16 Peters, 252 ; 9 Porter, 591.
In 10 Peters, 662, no question like the present was raised, as to the power to grant, but whether the property ever had been granted.
The case of New Orleans v. United States involved merely the question, whether the land had been dedicated to the public. It was like the Pittsburg and Cincinnati cases, differing only as to the facts proved to substantiate such dedication, and the code of law which was to govern it. The citations from Domat (723) are designed merely to point out the places which belong to the public. No question was presented or decided, nor was any opinion indicated as to the points involved in this controversy.
Prior to the treaty by which the United States acquired this territory, the former sovereign claimed and exercised the rights which the United States have undertaken to exercise. But it is said, that we must show that our government could be the recipient of this power. Suppose we cannot. Then the right must remain in Spain, which would be a strange result. But we say,
1. That portion of sovereign power which is vested in the United States by our Constitution and laws is unlimited.
2. The exercise of power by any department or functionary of the government, as among and operating on ourselves, is lim. ited.
3. The sovereign power as a nation in its foreign intercourse is subject to no constitutional restraint.
But it is contended, that the right to the shore is a sovereign and political, not a proprietary right. In what the distinction exists, so far as it is applicable to this controversy, has not been explained, and is not easy to be understood. That there is an immense body of lands in all our alluvial territory, from the North River to the Sabine, including the meadows between Newark and New York, those on the Delaware, the rice plantations of Carolina and Georgia, the marshes of Florida, the swamps of Louisiana, is a matter of fact. They are subject to periodical inundations. some daily, some by occasional freshets, some with the semiannual rise of waters. According to the argument on the other side, all these are to be considered part of the shore. How can a political power be said to exist without a proprietary right over marshes where no one can live?
It is said the treaties of 1803 and 1819 nowhere specify rivers, and from this the conclusion is drawn that they passed as part of the sovereignty. It seems more probable that they passed as part of the territory. Islands are mentioned, out in the ocean, under which we hold Key West, Tortugas, &c. Why should they be considered merely as incidents to sovereignty, and not part of the territory? The language of the grant is, in “ full property and sovereignty.”
The treaty of 1795, with Spain, (1 Laws U. S. 264), in designating the boundaries, speaks of them which separate the territories of the contracting parties, and establish part of this line of territory in the middle of a river. Article 4th designates the middle of the channel, or bed of the Mississippi, as the western boundary. In this treaty, as in that of 1819, a river is the boundary, and its free navigation is secured. Did any one ever suppose that either party precluded itself from using the highway, or from holding or disposing of the lands on the banks subject to inundation ?
It is said that the land which was in question in Martin v. Waddell, 16 Peters, 369, was similarly situated to the present ; that it was below high water, and thence it is inferred that it was above low water-mark. But the special verdict indicates no such thing. It says, “covered with water," " where the tide ebbs and flows.” Nor is there any thing in the passages cited (410, 413, 416) conflicting with this idea. New Jersey, who asserted the right sustained in that case, would be astonished to learn the construction now placed upon it, denying the right of private
property in the flats left bare at low water, or in the valuable meadows protected by banks from daily inundation, and converted into productive property, conducive equally to health and wealth.
In the lands thus situated, which had not been severed from the public domain, the United States had the capacity to acquire, and did acquire, a proprietary interest. Nor is this repugnant to our constitution or laws, or the principles of our government. Throughout the Union such property is held by individuals under titles sanctioned by legislative acts and judicial decisions.
The sea-shore and arms of the sea, “like other public property, may be granted by the king or government to individual proprie. tors." 2 Dane's Abr. 690, 691.
The Massachusetts colony act of 1691 grants numerous pieces of flats to the proprietors of the adjoining uplands. This was in strict conformity with the English law. The soil on which the sea flows and ebbs, that is, between high and low water-marks, may be
parcel of a manor. Where the tide flows, it is within the jurisdiction of the admiralty; where the tide ebbs, the land may belong to a subject. Every thing done on the land when the sea is out, shall be tried at common law ; 5 Co. 107, Constable's case. In New York and New Jersey, the inlets of the sea on Long Island and between the Passaic and Hackensac, have all been reclaimed and converted into meadows. When New York claimed the entire jurisdiction of the North River, she never thought of claiming the meadows and marshes on the Jersey side, although they were covered at every high tide by the waters of that river.
On the Delaware, in the States of Delaware, New Jersey and Pennsylvania, the same law prevails.
In Maryland, South Carolina, and Georgia, valuable private property has been thus reclaimed from the water.
Throughout our western country, Ohio, Indiana, Illinois, Missouri, Louisiana, Alabama, Mississippi, no question has ever been raised on this point until these cases first presented it. Millions