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by any common individual or corporation. Those individuals, for instance, to whom parcels of land were assigned, without being specially empowered so to do by the sovereign power, could claim to be proprietors only to high-water mark.'
But inasmuch as the king by virtue of his prerogative was authorized to create political power in this, as in all countries newly discovered and possessed by his subjects, the colonies, on receiving the royal charters, were invested with a political character, by which they succeeded to the territorial interests, which had previously belonged as jura regalia, to the sovereign power of the parent country. These charters were in the nature of grants, and were conferred by the king, on the idea that he was proprietor.3 But as they respectively created governments, it
1 Commonwealth v. Charlestown. 1 Pick. (Mass.) R. 180. Per Daggett, J., as to the law in Connecticut: "The doctrine of the common law is, that the right to the soil of the proprietors of land on navigable rivers, extends only to high-water mark; all below is publici juris — in the king, in England. That is the law of Connecticut; for we have no statute abrogating it: — It was the law brought by our ancestors, it is our law; the soil being not indeed owned by the king, but by the state." Chapman v. Kimball, 9 Conn. R. 40.
2 Cowp. Rep. 213.
The colonial governments of this country were of three kinds : First, Charter governments, by which the powers of legislation were vested in a governor, council, and assembly, chosen by the people. Of this kind were the governments of Rhode Island and Connecticut. Secondly, Proprietary governments, in which the proprietor of the province was governor; who generally resided in England, and administered the government by a deputy of his own appointment; the as
is to be observed, they were not construed as his other grants were; that is, as not excluding arms of the sea, &c., but as including them. And it was thus that the governments of the several colonies were invested with sovereign authority, delegated by the crown, to alter the common law in respect to their tide waters, or to grant an exclusive property therein at their discretion.
The right in the waters and shores of the sea passed from the crown, by letters patent from James I., to the council established at Plymouth, in the county of Devon, for the planting, &c. of New England, and from that council so much of their territory thus acquired, as was contained in the colony of Massachusetts Bay, was transferred to the company who undertook the settlement of that colony. This transfer to that colony was confirmed by the charter of King Charles I., which constituted the company a body corporate and politic, giving them absolute property in the land within the limits of the charter, the power of making laws for the government of the colony, and full dominion over all the ports, rivers, creeks, and havens, &c., in as full and
sembly only being chosen by the people. Such were the governments of Pennsylvania and Maryland, and originally of New Jersey and Carolina. Thirdly, Royal governments, where the governor and council were appointed by the crown, and the assembly by the people. Of this kind, were the governments of New Hampshire, Massachusetts, New York, New Jersey (after the year 1702), Virginia, the Carolinas (after the resignation of the proprietors in 1728), and Georgia.
ample a manner as they were before held by the crown of England. The company to whom that charter was made, having assumed a political capacity, and being made a commonwealth, exercised dominion over all the land within the limits of the charter, and all the privileges and immunities and franchises connected with it, as public property, parcelling it out into townships, or smaller divisions, for the purpose of settlement. By virtue, in fact, of the grant from the Plymouth company, the charter of king Charles, and actual possession and disposition of the territory, the people of the colony, in their politic capacity, succeeded to all the territorial rights, franchises, and immunities, which had ever belonged to the crown of England. The exceptions and provisions of the colonial ordinance of Massachusetts of 1641, clearly show, that the principles of the common law relating to this kind of property, were well understood by the colonial legislature.1
In Maryland, the doctrine is laid down by the courts of that state, that originally the king of England had a right to grant the land covered by tide water, subject to the common rights of fishing and navigation; that the former proprietors of Maryland acquired the same right of disposing of land covered by tide water within the province, subject to the
1 See opinion of the Supreme Court of Massachusetts, delivered by Parker, C. J., in Commonwealth v. Inhabitants of Charlestown, 1 Pick. (Mass.) R. 180.
same restriction, under the charter by which the province was granted to them by the king, as the king had prior to the charter; and that this right was now vested in the state of Maryland.'
1 Browne v. Kennedy, 5 H. & Johns. (Md.) R. 195; Wilson v. Inloes, 11 G. & Johns. (Md.) 351. The 4th section of the charter to Lord Baltimore has these words: -“Also we do grant and likewise confirm, unto the said Baron of Baltimore, his heirs and assigns, all islands and islets within the limits aforesaid, and all and singular the islands and islets from the eastern shore of the aforesaid region, towards the east, which have been, or shall be, found in the sea, situate within ten marine leagues from the said shore; with all and singular the ports, harbors, bays, rivers and straits, situate or being within the metes and bounds, and limits aforesaid, with the fishings of every kind of fish," &c. : with a saving in the 16th section to the king, and his successors, and to all the subjects of the kingdoms of England and Ireland of the liberty of fishing for sea-fish, &c. The language of the 4th section is too plain and explicit to admit of any doubt, and is strengthened, rather than weakened, by the saving in the 16th section, and clearly passed the property in the soil, covered by any of the waters within the limits of the charter, to the Lord Proprietary; who, thus become owner of the soil, subject to the common rights of fishing and of navigation, had full power and authority to dispose of it. Per Buchanan, J., in Browne v. Kennedy, sup. See also Smith et al. v. State of Maryland, 2 H. & M Hen. (Md.) R. 244; Harrison v. Sterret, 4 Ib. 540. The Proprietary of Maryland held the dominion of Maryland and property of the soil, which he could sell and dispose of in the same manner as any other person, and subject to the same beneficiary, legal and equitable rights, as in the hands of any other person. Howard v. Mole, 2 H. & Johns. (Md.) R. 249. The Proprietary continued in possession of all the vacant lands until the acts of confiscation, which vested the right to those lands, and the actual seisin and possession in the state, and the state's possession continued until the lands were granted. Cockey's Lessee v. Smith, 3 H. & Johns. (Md.) R. 20.
In the case of Martin v. Waddell, in the supreme court of the United States, it was adjudged that the tide waters, and the soil flowed by the same, in East New Jersey, passed to the duke of York by virtue of the charters granted to him by his brother King Charles II., in 1664 and in 1674, as one of the royalties incident to the powers of government, and were held by him in the same manner and for the same purposes, that such waters and the soil under them are held by the crown. The whole of the duke of York's interest therein, including the royalties and powers of government, were conveyed to the proprietors of East New Jersey, as fully, and in a condition as precisely the same, as they were granted to him; and those proprietors had both the same dominion and the same right of property in such waters and the soil under them, and in the fishery, that had belonged to him under the original charter, being held by those proprietors as a prerogative right, and incident to the regal authority. The surrender by the proprietors, in 1702, to queen Anne, and her heirs and successors, according to its evident object and meaning, restored to the crown, in the same plight and condition, whatever the duke of York held as a royal prerogative right, with the political power to which it was incident. When the people of New Jersey took possession of the reins of government, and took into their hands the powers of sovereignty, the prerogatives and jura regalia, which