In this respect it is to be construed upon liberal principles of public law. We admit that under this aspect of the case the regalia passed. And we contend that, if the grants did contain language sufficient to pass them on technical grounds, they will be construed to pass to the duke as the regalia of the government; he standing in the place of the crown, to hold them as the king held them. All the regalia, such as the sea and its arms, or the royal rivers, royal mines, wrecks, &c., &c., were held by the duke and the proprietory government under him, as attached to the government. The duke being in the place of the king in respect to them. 1 Halsted, 77, 78.

This construction is supported by considering, First, The character and purpose in and for which the territory was held by the king. Secondly, The design of the royal grants.

First. The territory was held and could only be held for settlement by colonization or otherwise. If held to lie idle, there would be the same objection to it as to the Indian title.

Secondly. The design of the grant was to colonize and settle with British subjects, in order to consummate the title and extend the British dominions. The purpose was, as the grant purports on its face, to introduce British law, and the British constitution.

To effect these great objects, it was indispensable that all the regalia or royal rights should be held here as they were in England, attached to the government, and for the benefit of the people.

Prerogative rights are held for the benefit of the community; more especially those charged with the common use, as royal rivers. Chitty's Prerog. 4; 4 T. R. 410; The Elisha, 5 Rob. Adm. Rep. 159. According to this view of the grant, the sea and its arms may correctly be said to be appurtenant to the government and territory as a colonial domain.

This construction is illustrated by the cases of counties palatine.

The count palatine derives his name, a pelatio, from his standing in the place of the king, and indictments are charged against

his peace. 4 Inst. 204. Hence lands in a county palatine, when granted by the count, pass within livery. 4 Inst. 206. Lands may be holden of him in capite, though they cannot be of a private subject. Davies's Rep. 181.

The regalia are not private, as they would be in the hands of an ordinary subject. The count palatine can establish Courts of justice.

The regalia in a county palatine are incident to the government. Boss v. Bishop of Durham, 2 Bulst. 226, 227. It is sufficient to prescribe for franchises not granted, by showing a county palatine. 4 Com. Dig. Franchise, D. 7.

A county palatine is an inferior subordinate jurisdiction in the heart of the kingdom, with mere judicial and administrative powers.

A colonial government extends over a large territory, and is clothed with high legislative and executive power as well as judicial with complete, though subordinate sovereignty.

If the regalia pass in a county palatine, as incident to the subordinate jurisdiction, the reasons for passing them as incident to the colonial government, to be held and applied to the benefit of the colonists, applies with tenfold force.

The surrender by the proprietors of the government to Queen Anne, included a surrender of all the regalia, such as wrecks, royal rivers, &c. 1st. Impliedly. 2d. In express terms.

1st. Impliedly. If the above view taken of the grant be correct, this follows of course :

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 govern ment, then clearly they were surrendered. What is a surrender but a retransfer? If the regalia pass incidentally by the creation or transfer of the sovereign power, they will, of course, pass by the surrender or retransfer thereof. A king de facto takes the jure regalia. Chitt. Prerog. 205.

But there are in this surrender express terms, apt and sufficient to retransfer the regalia to the crown.

They surrender all powers, authorities, and privileges of and concerning the government, and the inhabitants thereof. Leaming and Spicer, 615.

"Privileges" embraces the regalia in their hands. It was so understood by the proprietors. Sec. 13. It is so used at common law. 7 Com. Dig. Prerog. D. 32.

If only the high political powers of government were designed to be surrendered, why was this language inserted in the surrender? The government itself embraces all these high political powers, and is senseless without them. All the minor jura regalia concerned the government and the inhabitants.

The protocol is referred to, Leaming and 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. The error here arises from attending to the protocol or negotiation, instead of the surrender itself. The proprietors negotiated for a reservation of those rights, like the Duke of Athol. But though the commissioners were at first disposed to concede some of them, yet finally none of them were reserved in the surrender. But this attempt, on the part of the proprietors to procure such a reservation, shows they were satisfied that the surrender would pass them to the crown, unless an express reservation could be obtained.

In the construction of all ancient instruments, but more especially of public grants, long continued usage should have great influence.

Next as to the rights in the sea and its arms.

1. As to wrecks. This is one of the minor regalia respecting property, and is often vested in the subject as a franchise. Lords of manors bordering on the sea frequently claim it. Yet this

was surrendered, and has been the subject of repeated regulation by statutes providing when and under what circumstances the proceeds shall be paid into the state exchequer. Patterson's Laws, 385.

2. Ferries when established-wharves, ferry-stairs, piers, &c., stretch into the rivers and bays. If over a private river, the owner of the ferry would have to purchase the land of the owner of the river. No such claim to the public rivers has been set up by the proprietors.

3. Bridges. Toll bridges, and bridges connected with turnpikes, railroads, &c., when established over a public river, occupying the soil, would be an encroachment upon the rights of the proprietors, if they owned the bed of such river. Compensation in such cases is always made to the owners of private rivers and fast land; but none has been made to the proprietors as owners of the public rivers.

4. The right of the riparian proprietor to wharf out into the public river, is a local custom in New Jersey. How can the growth of such a custom be reconciled with the idea that the soil and fisheries in those public waters were the private property of the lords proprietors.

5. In all the public waters of the State they have two kinds of fisheries- common fisheries, and private or shore fisheries-belonging to the riparian owner. The latter is confined to fisheries for those kind of fish which were usually taken by hauling the net upon the shore, and are called shore fisheries. By long usage, these kinds of fisheries have grown into private rights, belonging to the riparian owner, and have been recognised by repeated legislative acts. Bennet v. Boggs, 1 Baldwin's Rep. 70. Those common of fisheries and riparian several fisheries are all incompatible with the claims of the proprietors, who, under such claims, would have had several fisheries in all the rivers, and disposed of them to their grantees.

The Delaware was by an early law declared to be a common fishery. But this grew out of the controversy with Pennsylvania,

and was the assertion of a right as against them. The same com mon rights of fishery have existed in all the other waters of the State. Leaming and Spicer, 480.

6. The oyster fisheries are common in all the rivers and bays of the State, and have always been protected as such.

The acts recite the rights of the poor to take oysters, and protect them from encroachment by citizens of other States; all founded on the idea of common right. 1 Halsted, 90, 91; 1 Allison's N. J. Laws, 57, Preamble; 1 Pat. 203; 1 Nevile, 87.

It is not pretended that the proprietors have ever possessed or enjoyed any of the regalia since the surrender. They have occasionally made a few grants which have extended over these public waters, but they have been very few. Their grants have almost invariably been confined to the bank or margin of the public rivers. See 4 Griffith's Law Register, 1292. But in the few grants they have made, it is not pretended that the grantees have ever set up several fisheries for oysters, or floating fish; or claimed and exercised an exclusive right in any other way.

One would suppose, if the proprietors had claimed the regalia after the surrender, they would at once have asserted and exercised the right of extinguishing the Indian title, a prerogative right appertaining to private property. But this has never been claimed or exercised independently of license from the royal government. General usage in New Jersey, then, is decidedly hostile to this extraordinary claim of the proprietors.

A question has arisen whether the King of England can grant the soil of the sea and its arms, so as to destroy or prejudice public rights. Not considering this question at all material to the main argument, I have purposely kept it out.

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 allu