Case of Pea Patch Island

30 F. Cas. 1123

• Court: U.S. Circuit Court for the District of Missouri
• Decided: January 15, 1848
• Status: Published

Opinion

OPINION.

Hr. SERGEANT,

the arbitrator, having heard the evidence and arguments, and taken due time to examine and consider the matter, delivered the following opinion on the 15th January 1848, in one of the rooms of the cap-ítol at Washington, in the presence of the counsel of the respective parties, and also of a considerable assemblage of persons who thought fit to attend:

The question submitted by the United States on the one side, and James Humphrey on the other, is thus stated in the submission: “To decide the question of the title to the Pea Patch Island, as derived by the United States from the state of Delaware, and by the said James Humphrey, claiming through the said Henry Gale, deceased, from the state of New Jersey.”

The importance of the case consists chiefly in this; that it involves the question of the boundary for nearly twenty-five miles, between the two states just named. It is true that the settlement of that boundary is not submitted, nor to be decided in the arbitration; New Jersey and Delaware not being parties to the submission, nor having agreed so to submit their rights. But it is also true that in conveying, the one to the United States, and the other to an individual, the island in controversy, they have necessarily communicated to the grantees the right to assert the title respectively conveyed to them, and to dispute the adverse title: and it is very manifest that this controversy turns mainly, if not entirely, upon the question, of the limits and jurisdiction of the respective states. If the Pea Patch Island is within the state of New Jersey, the title is in Mr. Humphrey. If within the state of Delaware, the title is in the United States.

The consideration and respect due to these states, as members of the Union, in whatever may touch their rights and interests, seemed to require that as much publicity as possible should be given to the proceedings; and an intimation to that effect was promptly acceded to by the city and county of Philadelphia, in liberally granting to the arbitration the use, first, of the supreme court chamber, and after-wards, of the venerable Hall of Independence. The arbitrator was attended by the counsel of the parties, who had laboriously searched out the evidence wherever it could be found, and followed its production with an able and learned. as well as interesting, discussion on both sides. It is believed that nothing has been omitted in either respect; • and that there is no reason to suppose that any thing in the shape of evidence or argument remains unexplored, which could throw additional light upon the subject. It remains for the arbitrator, after careful deliberation, and with the aids just mentioned, having come to a conclusion satisfactory to himself, to make his award. In ordinary cases his duty would be performed by simply executing the needful paper, and giving it the direction which is required, in order to render it, as demanded by the submission, “final and conclusive between the United States and the said James Humphrey, claiming nnder the said Henry Gale, deceased.”

But the same motives of consideration and respect, already stated, for giving the utmost publicity to the' proceedings; the nature of the controversy; the length of time it has been pending; the names that have been connected with it, from whom he will feel himself bound to differ in his views, or at least to appear to differ; and, he must add, the great confidence reposed in him by the parties in leaving the matter so long litigated to his sole determination—a confidence which forbids him to doubt his ability to decide it, but by no means relieves him from an anxious sense of the responsibility of the task he has, by their invitation, undertaken—all these things concur to impose upon him the duty, as it is also his desire, to present, in an intelligible and somewhat permanent form, the grounds of his decision, for the satisfaction of the parties, and the examination of those who may feel any curiosity about the case, or any interest in it. He is fully aware that his opinion is of no authority whatever, except for the single purpose as to which the agreement of- the parties has made it conclusive; that is, the question of title between them. He will, therefore, proceed to state these grounds as briefly as may be consistent with perspicuity.

The island in controversy, called the “Pea Patch.” lies in the river Delaware, rather less than five miles from New Castle, in a south-eastwardly direction. The most satisfactory evidence respecting it was given by Wilson M. C. Fairfax, Esq. of the United States coast survey, being from actual and careful survey and measurement. It was in writing and not under oath, but was received by consent of both parties; and there is no reason to doubt its accuracy. According to this witness, the length of the island is 1,0S3 yards, its average breadth 461 yards, and its area 87«°/ioo acres. The mid-line of the island, at its north extremity, is 2,000 yards from the Delaware shore, and 2,130 yards from the New Jersey shore. The mid-line at the southern extremity is 2,197 yards from the Delaware shore, and 1,875 yards from the Jersey shore. The middle line of the river Delaware, he says, run -through the island, would throw 219/io acres on the Delaware side, and 65?/io' acres to the New Jersey side. Such a line, he states, would pass through the island 46 yards north-east of the southwest extremity of the wharf at tbe lower end of the island which projects towards the Delaware shore, and 20 yards eastward of the middle point of the upper end of the island. With respect to the water, the witness says, the main and deepest channel of the Delaware river opposite the Pea Patch is on the Jersey side. The greatest depth of water in the channel on the Jersey side is 40 feet, and on the Delaware side 25 feet. The average depth of water in the channel of the Jersey side is 32 feet, and on the Delaware side 23 feet. But to take the entire channel on either side of the island, no vessel drawing more than 19 feet water, at low water of spring tide, can pass through. The Jersey channel is the shortest and widest, and both about'equally curved.

Witnesses have been produced to show which is the main channel of the river, as to which they have differed in opinion. The greater part, probably, have thought the western or Delaware channel to be the main channel. They have stated that the bottom on that side is softer and safer, as well as better holding ground than on the east, though they state, also, that the eastern channel has undergone changes at different periods. Some of them have stated, too, and no doubt truly, that the shore on the Jersey side, opposite the Pea Patch, has been wearing away considerably for some years past. And, finally, some of them, judging only from sight, have asserted .the island to be nearer to New Jersey than to Delaware. As to this, however, the evidence from survey and measurement, already referred to, is much more to be relied upon than opinions like these.

In the view to be taken of the case, and with reference to the grounds upon which it will be decided, it is not necessary to go into the particulars of the testimony just adverted to. The material facts, about which there can be no dispute, are these: The island is in the river Delaware, with a deep channel on each side; is far below the low water mark on both sides; is not connected with the land either of New Jersey, or Delaware; and is at all times of tide surrounded by water. There is a shoal, called the “Bulk-Head Shoal,” from the northern •end, towards the northward and eastward, but it is never bare; and is, besides, pierced by a channel of such width and depth, that vessels •of heavy draught of water can pass through it. The only question raised about it, and that not at all material, is, whether large sized vessels •can beat through it from the western channel to the eastern, or in the opposite direction, against a head wind. The fact is, that vessels can pass entirely round the island, upon the waters of the river, at all times of the tide. The island is in the waters of the Delaware.

It is proper further to state, that this island is of comparatively recent formation. Maps and charts, as late as tbe middle of tbe eighteenth century, do not mention it. Kensey Johns. Esq. who was eighty-eight years and four months old at the time of his examination (Nov. 2d, 1847), a witness not more venerable for his years than for the high stations he has held, and the uniform excellence of his character and conduct through his long life, states that he had resided in New Castle from tbe year 1780 till that day. He then says, “I do know it, (the Pea Patch,) and have known it since the year 1780. At first it. appeared about the size of a man’s hat. In 1813, when the United States took possession of it. it had grown to be a large island. It was not worth a cent to a private citizen; the expense of banking would have been more than it was worth.” The general conclusion seemed to be on both sides, that it had not made its appearance earlier than 1780, which in the argument, seemed to be an agreed time of its beginning to be visible, and was probably nearly correct. It would •seem, with some allowance for what must be measurably hypothetical, to have sprung up from the bottom, in the deep channel of the river, dividing that channel into the two channels. whose respective titles to the dignity of -the “main channel,” have been so much controverted in .the evidence and the argument. From other evidence it appears that, until tbe United States made some embankment, the island was nearly, if not entirely covered with water at every tide.

The main point, however, is that before mentioned, which will not be affected by anv errour in the conjecture just stated. From 'its first •appearance, the island has always been where it now is. that is to say, in the deep river, below the low water mark, surrounded by navigable water, and separated at all times from the land on both sides.

The description and account thus given of the subject of controversy, are deemed to be sufficient for the present, to introduce and render intelligible the several questions to be considered and decided. They are indisputable, it is believed, and stand as facts beyond the reach of the conflicts in the evidence as to ■other matters, not deemed to be important, and therefore laid aside.

We are thus brought, after stating what tbe -thing in controversy is,—enabling us to judge by wrhat kind of title such a thing can be claimed and held,—to the examination of the case made out by the respective parties. And it is proposed to begin with the case of Mr. Humphrey, as most conducive to tbe right understanding of the questions to be considered.

Has Mr. Humphrey made out a title?

He begins, taking the evidence in chronological order, with the copy of the record of two warrants from the proprietaries of West New Jersey, one dated November 4th, 1743, for 600 acres of unappropriated land in West New Jersey, the other dated August 7th, 1782, for 5,000 acres: a return of a survey under them for Edward and Clement Hall, October '8th, 1874, “of an island in the river Delaware, called the Pea Patch, situate in the county of Salem, about one mile west of Finn’s point, in Penn’s neck, and is about west of the mouth of ! Salem creek, &c. containing 178 acres of marsh, sand bank, and mud fiats; New Castle distant about 4% miles.” The record adds: “November 3d, 1784, inspected and approved by the council of proprietors, and ordered to be recorded.”

This record, authenticated as it was, was good evidence by the laws of New Jersey, and therefore was good evidence in the arbitration. It was accordingly admitted.

Many objections were made to the warrants, and especially to the survey, which need not be stated. The answer to them all was this, that if the .proprietaries of West New Jersey were the owners of the island, and had power to grant it, it was for them, and for them only, where there was no interfering right, to object to irregularities in tbe warrants or in the surveys under them. By accepting and approving the return of survey, and ordering it to be recorded, they waived all such objections, and no one else could make them, unless he bad a right which was interfered' with. The survey must, therefore, be taken, to be good, and to have vested the title in the Messrs. Hall, if the proprietaries had a right to grant. From Messrs. Hall, the title, by mesne conveyances, was regularly derived to Mr. Humphrey, so as to vest in him all the right they bad, which, as we have, seen, was all the proprietaries could give, neither more nor less.

The question then is, what right had the proprietaries V When Judge Baldwin gave his charge to the jury in the case of Gale’s Lessee v. Behlin [Case No. 5,189], in the circuit court of the United States for the district of New Jersey, (which will be more particularly noticed hereafter,) the case of Martin v. Waddell, 16 Pet. [41 U. S.] 367, bad not been decided by the supreme court of the United States, where it was brought by writ of errour to the circuit court just mentioned, upon a judgment there rendered, Judge Baldwin presiding. The decision of the supreme court was in 1842. Being upon a question within the jurisdiction of that high court, it is deemed to be of the highest authority in all inferiour tribunals, and, of cofirse, in this, in point of authority,. the most humble of all. The point there decided —to say nothing of the learned and satisfactory reasoning of the chief justice (Taney) in delivering the opinion of the majority of tbe court—the very point decided is. that after tbe surrender to the crown in 1702, by the proprietors of East New Jersey, of the powers of government, they had no right in the navigable rivers within the charter limits of New Jersey, nor to the soil under them, and have bad none since. In this respect, the West New Jersey proprietaries stand upon the same ground precisely. Both surrendered the powers of government at the same time, and, it is believed, in the same terms. The decision of the supreme court equally settles the law for both. It follows, that the West New Jersey proprietors, at the date of the warrants and survey, and acceptance of the survey, had no right in tbe river Delaware, even though it had been within the charter limits of New Jersey, (which will be hereafter examined,) and could give no right in the island to Messrs. Hall. For, upon the survey itself, it appeared that the island was “in the river Delaware,” and that it was “about one mile” from Finn’s point, the nearest land on the Jersey coast.

The same point was decided in the same way by the highest judicial tribunal of the state of New Jersey. Arnold v. Mundy, 1 Halst. [6 N. J. Law] 1; Shepard v. Leverson, 1 Penn. [2 N. J. Law] 391. The first of these eases is said to have been upon a location made to try the right. In the other it came up incidentally.

The concurring judgments of the supreme court of the United States, and of the judges of the highest court of New Jersey, in such a matter, certainly do amount to binding authority. In accepting them as such,' however, it is not to be understood that any doubt is entertained of the solidity of the grounds upon which they were made. It may be deemed presumptuous, perhaps, even to suggest that they are • approved, where approval is of so little consequence, indeed so entirely valueless, in comparison with the proper and intrinsick weight of the judgments of these high courts, and especially of the supreme court of the United States. It may be allowable, nevertheless, to add, in vindication only of the effort to fulfil the whole duty confided to the arbitrator, that if the question were new, and to be examined without the aid of the great light thrown upon it by the opinion of the supreme court of the United States, having fully and deliberately examined the question, he should, upon original grounds, come to the same conclusion that he most willingly yields to the rightful authority of the judgment. It seems contrary to reason, and against the spirit of' our institutions, that great publiek rights, in which all have an interest and concern in common, should be without a publiek guardianship, disinterested enough to regard all with impartiality, and powerful enough to protect them in the enjoyment of their privileges. Government is the proper trustee, everywhere existing with the consent or allowance of the people, and, in our representative republicks, by free election, with the power of change. If, in the discharge of such trust, portions might be disposed of, so as to diminish the common fund, still there would be no contradiction, as is supposed, of one or more of the grants by the state of New Jersey, ' for it must be presumed that such disposition is itself in some way for the common benefit, and on terms the least injurious to the publiek. A private proprietor, on the contrary, looks only, and rightfully looks only to his own advantage.

The conclusion upon this point is, that the survey was merely void, that it gave no title, and that no title can be derived from it. the proprietors themselves having no right in a navigable river, nor any power to grant.

The next evidence of title exhibited and relied upon by Mr. Humphrey, is an act of the legislature of the state of New Jersey, dated November 24th, 1831, granting to Henry Gale, his heirs and assigns, “all the right and title of the said state of New Jersey to the said island called the Pea Patch, situate in the river Delaware, in the township of Lower Penn’s Neck, in the county of Salem and state of New Jersey, as mentioned and described in the before mentioned survey,” meaning the survey of 1784.

This act, it will be seen, was passed about seventeen years after the present controversy began, and during the time the United States were in actual possession of the island. The counsel of Mr. Humphrey, in the course of the argument, objected to the cession of the island to the United States by the state of Delaware, on the ground that the state was not in possession, but it was adversely held and possessed, and therefore could not be lawfully conveyed. The same objection applies to New Jersey. Whether such is the law of New Jersey or Delaware, is not known. It is-believed not to be bo. But it is not material to inquire into the matter, nor to examine particularly the evidence of possession, for a rea•son which seems to be a sufficient answer. Both acts of the respective legislatures, besides operating as grants, .being passed with all the forms and sanctions of the constitution, were also acts of legislation, and, no-third right intervening, could pro tanto repeal .the general law, and give the required ability-Such would be their effect. If, then, the Pea Patch Island was within the limits of New Jersey, and subject to her jurisdiction, there is no doubt of the sufficiency of the grant to-pass the title of the state. The same may be said of the state of Delaware, whether they had champerty laws or not. It remains, too, to be shown that a sovereign state can be affected by adverse possession, unless so long-continued as to found a presumption of grant.

. It may be further remarked, that in this act the state of New Jersey does not assert a right or title. In the preamble the act recites the survey of 1784, the mesne conveyances to Henry Gale, and then proceeds as follows:: “And whereas, it hath been suggested that the state of New Jersey hath some title thereto, and by reason thereof doubts have arisen, concerning the title of the said Henry Gale,” and then goes on to grant “all the right and title of the said state of New Jersey.” This remark, it must be observed, does not affect the legal sufficiency of the grant to pass all the right of the state, and entitle Mr. Humphrey to claim under it. It is good between him and the state of New Jersey, and entitles him to vouch in his own behalf all the well founded claims of the state. But the grant is not in the ordinary form of a conveyance of land. It is only a quit-claim, which one may give to-quiet doubts, whether he has a right or no right. The value of the fact is only as it shows, that as late as 1831, when the island, by great expenditures upon it by the United •States government for works of publiek de-fence, had become an object of general attention and interest, the state of New Jersey made no assertion of right. The act, for a mere nominal consideration, simply relinquishes whatever right, if any, the state may have. And this remark may be further extended. It is believed that there has been no evidence to show that the state of New Jersey ever has claimed the title to be in her. It may be admitted that the proprietors of' West New Jersey did assert a right by the acceptance and approval of the survey. But they did so, in their own behalf, adversely to-the state, under a claim which is now settled to have been unfounded.

In the recital, however, there is a statement entitled to some attention, in connection with a part of the charge of his honour the late-Judge Baldwin, in the ejectment tried in the circuit court for the district of New Jersey. The recital is, that, by virtue of the survey, “Edward Hall and Clement Hall became seized and possessed,” and that, by divers mesne conveyances, Henry Gale “hath become seized and possessed.” The natural and the legal import of this language is only this, that the constructive legal possession of vacant land follows the right, and it must be admitted that, if the survey had given the right, he would have been, in this sense, in possession. But the-proprietors themselves having no right or possession, could give none to their warrantee.

Judge Baldwin, in the latter part of his-charge, comes to the following conclusion: “In the year 1784, this island was surveyed for Edward and Clement Hall on a West Jersey proprietary warrant, under which it was held until their title became vested in the plaintiff. From this time, he stood in place of the West Jersey proprietors, entitled to all their rights by prescription against the crown, against. • the Penns and the state of New Jersey; ■ and, -in his own right, by his possession, such as it .•was, entitled to the benefit of any limitation .which had commenced or begun running from the date of the survey. As there was no adverse possession or claim, his legal seizin or -possession continued till his dispossession by the United States in 1815, a period of thirty- . one years, which would bar the right of entry • of any adverse claimant; and, connected with • the general claim of the proprietaries of New .Jersey to the islands in the Delaware from • 1739, would make the title good by a prescription of seventy-four years of quiet enjoyment, -adverse to any right under the deeds of the -Duke of York to William Penn.” He then con- ■ eludes that the title under Gale is derived from the proprietors and is good, and, as has been seen, adverse to the state of New Jersey.

Unnecessary criticism upon' the charge of Judge Baldwin, is forbidden by the respect due to the memory of a learned and able man, who so long filled an eminent judicial station. The several legal principles contained in the paragraph just quoted are neither affirmed nor dis-affirmed. Nor is it required to point out the one great errour which vitiates the whole of the charge. It has already been done authoritatively. The case of Martin v. Waddell, 16 Pet. [41 U. S.] 367, had not then been decided. The decision since has established a different doctrine from that of Judge Baldwin, upon fulldiscussion and deliberate consideration, and in concurrence with the judgments of the courts of New Jersey, that from 1702, the proprietors never had any right in navigable rivers, and, as there will be occasion to consider more fullyhereafter, the right of the state did not come into existence until July 4th, 1776. Its origin is thus distinctly marked, being connected withthe great publick event of that day, which will never be forgotten,' as it was the birth-day of a nation, and registered with an exactness ofwhich there is probably no other example in the annals of the world.

This then leads directly to the inquiry, whether the Delaware river was ever within the charter limits of New Jersey, in that part of ■ it where the Pea Patch Island has since grown ■up. If it were, the right would have become vested in the crown by the surrender of 1702, ■would have so continued until July 4th, 1776, •and then would have passed to the state of .New Jersey as a part of her sovereignty, acquired on that day by severing her connexion with Great Britain, and assuming to herself all the powers of government. The derivation would thus have been from the crown, though not by grant.

To maintain that the part of the river in controversy was within the charter limits of New Jersey, the counsel for Mr. Humphrey have .produced the following deeds and papers: Patent, March 12th, 1663—4, from Charles II. king of England, to his brother the Duke of York, his heirs and assigns, for a large tract of territory, including what is now the state of New Jersey, the last boundary of which (now the west boundary of New Jersey) is as follows: “and all the lands from the west side of the Connecticut, to the east side of Delaware Bay.”

Lease' and release, June 23d and 24th, 1664, the. Duke of York to John, Lord Berkely, and Sir George Carteret, reciting the grant from the king to the Duke of York, grant and convey “all that tract of land adjacent to New England, and lying and being to the west of Long Island, and Manhitas Island, and bounded on the east part by the main sea, and part by Hudson’s river, and hath upon the west Delaware bay or river.”

Patent, June 29th, 1674, Charles II. to the Duke of York, for New Jersey by the same description as before. Between this patent and the former one, New York had surrendered to the Dutch, and it is stated that the people of New Jersey sent deputies to New York, and swore allegiance to the states general and the Prince of Orange. In February, 1674, a treaty of peace was signed between England and the states general, by which New York and New Jersey were restored to the English. This, deed is supposed to have been made to remove all doubts which might arise from these occurrences.

There is no necessity for tracing the conveyances further. The title is regularly derived to the proprietors of East New Jersey, and West New Jersey, between whom the province-was held in the portions it had been divided into by a partition theretofore made, and by the-lines and boundaries then fixed.

In 1702, the proprietors of New Jersey surrendered to the crown the powers of government, and thenceforth were only private proprietors.

Returning, then, to the question, whether the-Delaware river at the part of it now in controversy was within the charter limits of New Jersey, there can at this time of day be no question. It was not within the grant, and as far as is known, there has never been a dis-sentient opinion.

In 1721, the question was submitted to the law officers of the crown by the commissioners of trade and plantations. The opinion of Robert Raymond, attorney general, and Philip Yorke,. •solicitor general, will be found in the first volume of Chalmers’ Opinions (page 59). They say as follows: “We have perused the said clauses,” (in the charters of New Jersey and-Pennsylvania,) “and have been attended by the agents of the parties who claim the province of Pennsylvania, and their counsel, who laid before us a copy of the letters patent granting the said province, and have heard what hath been alleged on both sides; and, upon consideration of the whole matter, are of opinion that no part of Delaware river, or the islands lying therein, are comprised within the granting words; of the said letters patent, or of the said -annexed extract of the grant of New.Jersey; but we conceive the right to the same still remains in the crown.” The opinion seems to have been acquiesced in, for there .appear to have been no further proceedings before the commissioners of trade and plantations, nor before the king in council, whom the commissioners were sometimes employed to aid in colonial investigations; and if it should be suggested that there were no agents present on the part of New Jersey, the answer is,, the question was one and the same as to both, for Pennsylvania was bounded by the Delaware on the east, just as New Jersey was on the west.

Some stress might, perhaps, be laid upon the nature of this opinion, partaking, as it does, of the character of a judicial proceeding, and some, too, upon the names of the eminent men by whom it was given, and the high stations they afterwards adorned. But this is needless. The law of nations furnishes the same rule of decision. Here was the crown owning a large territory on both sides of a navigable river, (for, at the time of the latest of the patents to the Duke of York, neither the grant of the-three lower counties nor of Pennsylvania, had been issued,) and it makes a conveyance of territory on one side of the river, hounding on, or bounded by, the river. Is the river, or any part of it, included in the grant? This is the 'very question which came before the supreme court of the United States in Handly’s Lessee v. Anthony, 5 Wheat. [18 U. S.) 375-385, in the-year 1820. The decision of the court was delivered by Chief Justice Marshall, that the grantor retains the river within his own domain, and the grantee extends to the river only, and the low water mark is his boundary. The same point was decided, in the same way, by the supreme court of New Jersey, in Arnold v. Mundy, 1 Halst. [6 N. J. Law] 1, in 1821, with only this difference of expression, “the grant is-to the edge of the river only,” leaving a doubt whether it is a line shifting with the rise and fall of the tide. The same point, as to the limits of New Jersey on the Delaware river •and bay, namely, that it was bounded by the low water mark on the west side, was decided by Judge Washington, in Corfield v. Coryell [Case No. 3,230], in 1823; by Judge Baldwin, in Bennett v. Boggs [Id. 1,319], in 1830; and it was approved by him in Gale’s Lessee v. Beh-lin [Id. 5,189], in 1833-4. It must, therefore, be considered as settled that, by her charter limits, the territory of New Jersey extended only to the low water mark of the Delaware river on the east side, and included no part of the river. It is, accordingly, so considered.

The states of Pennsylvania and New Jersey, as has been seen, being both bounded by the low water mark on their respective, sides, and the river itself belonging to the crown, upon the Declaration of Independence, a new state of things -arose. The right of the crown was -extinguished, and the river lay vacant, a boundary between them. “When,” says Chief Justice Marshall (Handly’s Lessee v. Anthony, 5 Wheat. [18 U. S.] 375-379), “a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream.” The states of Pennsylvania and New Jersey adopted this rule. In 1783, a compact was made by commissioners mutually chosen, which .was ratified by acts of their respective legislatures, in 1785. By this compact, concurrent jurisdiction upon the water was given to both states, with some restrictions not necessary to be detailed; some islands were specifically allotted to each state, probably from motives of convenience; and it was agreed that the rest should belong to the state to which they lay nearest, and that all the islands which should thereafter be formed in the river, should be governed by the same principle. This agreement was limited, southerly, to “where the circular boundary of the state of Delaware toucheth upon the same,” (Delaware river.) As between Pennsylvania and New'Jersey, this compact was formed upon great deliberation, and with a full knowledge of the subject, as must be believed from the high character of the commissioners on both sides, and is in conformity with the principles afterwards laid down by the supreme court of the United States in the case, before cited, of Handly’s Lessee v. Anthony.

If, then, that part of the river Delaware lying between the states of New Jersey and Delaware, which includes the Pea Patch Island, was in the crown on July 4th, 1776. “the original property not being in either,” it would, on that day, have become vested in the two states. In that case, New Jersey would be entitled to the eastern portion of the river, though not within her charter limits; succeeding to that ■extent to the rights of the crown, which had been divested by the Declaration of Independence. Delaware, in the same case, would be entitled to the western portion. Both would •commence their right from that day. How the line would be drawn, or whether it would place the island on the side of the one state, or of the ■other, it is not material to inquire; for the ■view to be taken renders it unnecessary.

The question, having already shown that the ■“original property” was not in New Jersey, is thus reduced to the single inquiry, whether on the eventful day referred to; the right to that part of the river was in the crown of England, •or whether the “original property” was not in the province or colony which then became the state of Delaware. The “original property” of Delaware, that is, her title previously acquired and continued up to that day, becomes, therefore, the subject of examination, and has been accordingly examined, carefully and deliberately. The evidence, as far as necessary, will now be stated.

The title begins with two deeds of August 24th, 1682, commonly termed the deeds of feoffment, from James, Duke of York, to William Penn. The first of these deeds grants and conveys to Mr. Penn, his heirs and assigns forever, as follows: “all that the town of New Castle, otherwise called Delaware, and all that tract of land lying within the compass or circle of twelve miles about the same, situate, lying and being upon the river Delaware, and all islands in the said river Delaware, and the said rive* and soil thereof, lying north of the southernmost part of the said circle of twelve miles about the said town.” The deed then covenants for further assurance, and appoints John Moll, Esquire, and Ephraim Herman, gentleman, his attorneys, jointly and severally, to enter into and take possession and seizin of the premises, and to deliver possession and seizin to Mr. Penn, his heirs and assigns.

The second of these deeds conveys to Mr. Penn all the territory from the south line of the preceding deed, that is, from “twelve miles south of New Castle, and ’extending south to Capin Lopin,” meaning Cape Henlopen. In this deed, there is no grant of “islands in the said river Delaware, and the said river and soil thereof.”

These two deeds, it will be perceived, embrace the whole of the territory of what were called the “Three Lower Counties,” now the state of Delaware.

On October 28th, 1682, the attorneys appointed in the deeds of the Duke of York, made liver}' of seizin to Mr. Penn of the first of the tracts, of which a record is made and is still preserved, and is, in all respects, exact and particular. On November 7th, 1682, as also appears of record, livery was made of the tract in the second grant to Captain William Markham, Mr. Penn’s attorney. The declaration is signed by twelve witnesses, “in Delaware river,” probably on their passage up from below the twelve miles. Of both a record was made, and still remains, in all respects exact and particular.

There is this remarkable difference in respect to the two grants; that, in the first, the livery is stated, besides “twig and turf,” to be of “water and fowl of the river Delaware;” in the other, it is of “the land, soil and premises” in the indenture mentioned.

They state, also, that Mr. Penn remained in quiet possession. John Moll, the attorney appointed by the Duke of York to deliver seizin, in his certificate, also recorded, is still more precise. Of the livery, under the first deed, he says, they did give and surrender to the said W. Penn, Esq. actual and peaceable possession of the fort at New. Castle, by giving him the key thereof, to lock upon himself the door; which being opened by himself again, “we did deliver also unto him one turf, with a twig upon it, a porringer, with river water, and soil, in part of all what was specified in the said indenture,” &c. As to the other, he says that a few days after, they went to the south side of Apoquiniming creek, by computation beyond the twelve miles, and there made livery of sei-zin of the lower part. The distinction thus made, it may be necessary hereafter to refer to.

Prom a book kept in the government at New York, begun in 1682 and ending in 1683. a copy has been produced of an entry or paper, of course made during that period, from the commander and council, beginning thus: “The record of the commander and council; declaration on Esquire Penn’s grant for New Castle, St. Jones and Whorekills, by the commander and chief, in council.” It then proceeds to recite the two deeds from the Duke of York to Mr. Penn, of August 24th. 16S2, setting out, at large, and accurately, the description in each; states the appointment of attorneys to deliver free and actual possession, and adds: “as by the -said indentures here produced, and shown to us, and by us well approved and entered in the publick records of this province, doth and may more at large appear; and we being there* by fully satisfied of the said William Penn’s right to the possession and enjoyment of the premises.” The paper which is addressed “to the several justices of the peace, magistrates and other officers, at New Castle, Saint Jones, Deale, also Whorekill, at Delaware,” or within any of the bounds and limits above mentioned; and then after thanking them for their good service, during the time they had remained under his royal highness’ government, dismisses them, “expecting no further account .than that you readily submit and yield all due obedience and conformity to the powers granted to the said William Penn, in and by the said indentures, in the performance of which we wish you all happiness.”

John Moll, in the certificate before mentioned, after stating the livery of seizin already referred to, adds this statement: “Which acting of us was fully, accepted and well approved by Anthony Brockhold, then commander in chief, and his council at .New York,' as appears by their declaration, • bearing date November 21st, 1682, from which jurisdiction we had our dependence all along, ever since the conquest, until we had made the above related delivery unto Governour William Penn, by virtue of his royal highness’s order and commands.”

On October 28th, 1682, as appears from evidence of record, sundry inhabitants of the town of New Castle, upon Delaware river, having heard the first of the two deeds read, and having seen the possession delivered by the Duke of York’s agents, “whereby we are made subjects under the king to the said William Penn,” make a solemn promise, in tiie presence of God, to yield him obedience, and to live quietly and peaceably under his government. Soon after, an act of naturalization was passed.

The objection to these two deeds, however, is, that the Duke of York himself had, at that-time, no grant for the premises from the crown, and therefore had no title to convey.- It is certain that no such grant has been produced, and it is assumed, as a fact, that no formal grant had been made to him by the crown. But, if the question were open, there would be grounds for believing that the Duke of York was some how empowered to deal with the territory on the west side of the Delaware river, and the river itself, as connected with the operations he was conducting to protect or recover it from the Dutch. Not that being a subject, he could acquire any right for himself by conquest, which cannot be pretended, but that in such a war, for enabling him to quiet the inhabitants, or strengthening the defence of the country, it was not unnatural nor unreasonable to suppose that he might be entrusted with a large discretionary power, and even with rights in himself for its better | execution, especially considering the relation he stood in to the king, and that he was himself the heir presumptive to the crown. John Moll says, they always “had their dependence from the jurisdiction of New York,” which was the Duke of York’s government, and it was by that jurisdiction we have seen that the actual transfer of the powers of government was made to William Penn, which he began immediately to exercise. There is other evidence to the same effect. The Duke of York and his govern-ours did make grants along the Delaware, and did confirm titles derived from the Dutch and Swedes. There are instances of titles beginning with the Swedes, confirmed by the Dutch, afterwards confirmed by the Duke of York and his officers, and always treated with respect. But there is another transaction of those times, of publick notoriety, more important than any of these, not only on account of its magnitude, but also for the judicial in-.ternretation it has received. In 1681, William Penn obtained his charter for the province of Pennsylvania, bounded on the east by Delaware river, from twelve miles north of New Castle town, and on the south by a circle drawn twelve miles north of New Castle. On. August 21st, 1682, the Duke of York gave him a release of all his claim upon the province. In the recital it is stated that he “is willing and pleased to confirm and make any further assurance of. the said tract of land and premises unto the said William Penn and his heirs.” This deed has always been deemed a part of' William Penn’s title; and, furthermore, it has-been held that he took subject to grants previously made or confirmed by the Duke off York’s government. The Swedes held a large body of land immediately below the city off Philadelphia. The titles derived from them are still respected. They owned also the land, now occupied by the city of Philadelphia. William Penn obtained it from them by exchanging lands on the Schuylkill. And yet there was no formal grant from the crown to-the Duke of York.

But it is unnecessary, for a reason that wilL presently appear, to pursue this inquiry further.' Perhaps, indeed, the Duke of York, .by subsequently accepting a patent from the-crown, and those deriving from him, if they claim under that patent, must be deemed to-be concluded by it from -setting up any prior title in the Duke of York.

Be that as it may, the important fact deduced from what has been stated, and leading-to consequences in law which will be more fully developed as the history-advances, is this: that it was -under these deeds, by the description and boundaries contained in them, and none other, and with the possession and seizin then delivered, that the three lower counties-became, at least de facto, a province or colony, and acquired , a name and identity which they maintained thenceforward for a century, less only six years, and then, of their own will,, exchanged for the higher title of a sovereign and independent state. The same community still exists after nearly three quarters of a century more, with only such modifications as-it has chosen to make in the mode of its existence, and as it rightfully might make, but. still preserving its identity as the same corporate body which first had its being in the year 1682. The province was, and always continued to be, an unit.

Immediately after, the freemen began their-work of government by acts of legislation. The-first act (7th December, 1682) was the “Act of Union.” In the volume of laws referred to. this act is immediately preceded by the two deeds from the Duke of York to Mr. Penn, set out at large. The preamble recites the patent for Pennsylvania, and the release from the Duke of York. It then goes on to set forth the two deeds from the Duke of York for the three lower counties, giving in full, and accurately, the-description in each, and especially in the first, the words “as also the said river of Delaware, and soil thereof, and islands therein;” and states that the freemen of those counties have desired to be annexed to Pennsylvania. The enacting part follows, providing for the union, and for the naturalization of such of the inhabitants as were foreigners. Then follow sundry other acts of legislation in the same year,, constituting the body of laws well known by the. name of the “Great Law.” They profess to be enacted by the deputies of the freemen off the province (Pennsylvania) and the counties aforesaid (the three lower counties.) The legislature was, indeed, constituted of equal numbers from the province and counties. To understand the whole bearing of this evidence, it must now be remembered that these laws were-to be transmitted and delivered to the privy council in England, and, if disapproved by the crown within six months from the delivery,, and so declared, were to become void; otherwise, to remain and stand in full force, “according to the true -intent and meaning thereof.” The “Act of Union” was, of course, submitted to the council, and approved by the crown. Looking at the recital and enactments. of that act, -and its preamble, it is impossible ,to avoid saying that the crown, assented to them, thus acknowledging the validity :and legal operation of the two deeds from the Duke •of York, tiie boundaries defined in them, the possession and right of possession according to those boundaries, and the rightful exercise of the powers of government under them. An -existing colony was thus acknowledged as rightfully created, and lawfully enjoying the powders and privileges of a colony by known and settled boundaries; and this acknowledgment was by all who had an interest. New jersey had none, Pennsylvania had none, the Duke of York had none. The new province encroached upon none of them; laird Baltimore asserted a claim on the land, but it was afterwards decided to be .unfounded. • The crown alone could object, .and the crown assented. This assent, let it also be borne in mind, was not. an informal and hasty one, nor upon insufficient knowledge. The king was in the exercise of his .royal power, was aided by his privy 'council, and had full information before him .of all the facts necessary to enable him to understand what he -was doing. That he could, if so minded, have retracted his assent, it would be difficult to maintain. But he never did retract his assent, nor intimate any -disposition to do so.

On March 22d,. 1682-3, Charles II. made a grant by patent “to James, Duke of York, of the same premises which had about seven months before been conveyed by the Duke of York to Mr. Penn. This deed in its description is the same as in the two deeds of August 24th, 1682. It describes separately and grants separately, the two parts of the lower counties as in those deeds. The only difference is, that in the .former, there are two instruments; in the latter, only one.

The original patent was here produced— brought from- England some years ago by the late j. R.-‘Ooates,-Esq. (who was-an agent of the Penns,) where it was given to him by John Penn, Esq. a lineal descendant of William Penn, from among the title papers of the Penn, family; rather, it was understood as a thing no longer of use to him, which might gratify curiosity in Pennsylvania- and Delaware, than for any other purpose. At Mr. Coates’s death it went into the hands of J. G. Morris, Esq. who has carefully preserved it, and now comes to us from the possession of Mr. Penn, with a presumption that it has been there accompanying his possession as a part of his title.

Of this deed there have also been produced various exemplifications; one from the rolls in England, one from the records in Delaware, a copy, sworn to be a copy, before the lord mayor of London, in 1735, and perhaps others. It is referred to, also, in the Votes Of the Assembly. The original, or a sworn copy or exemplification of it was an exhibit accompanying the bill of the complainants in the case of Penn v. Lord Baltimore, filed in the high court of chancery of England, in the year 1735, and was in evidence in that case, and the original was offered to be, and probably was, produced.

If this deed had preceded the deeds of the Duke of York, the regular derivation of the title from the crown to the lower counties could not have been disputed, and there would have been no question open but upon the construction of the terms of the patent, as to what was conveyed. But above a century ago, in the case just cited of Penn v. Lord Baltimore, the defendant set up the argument against the Penns, supposed to be derived from this order of the instruments, “that the grant to the duke being made after the deed by the duke to Penn, this grant must nave been for the duke’s use, and not for Penn’s.” The answer on the other side was, “We nave a fact that will determine that case; for we have the very original charter itself, under the great seal, in our custody, ready to produce, which if the duke had intended .for himself, and to defeat our'tittle by, he would have kept, and not Mr. Penn, •who was at-this\time of passing it, and for a • considerable time longer, over in America.” These things are gathered from a large .folio printed book, (belonging to Thomas Gilpin, Esq.) produced on the part of the United .States, which contains the pleadings and evidence :in the case, and is called in the statement the “Breviate.” The case was decided by Lord Hardwicke, in 1750, and is reported in 1 Ves. Sr. 444. As the decision is deemed to be •of great weight in every aspect, and made a ■final end of all controversy in England, (for there never has been a dispute since,) and thus fixes a new epoch in the history of the province, it will be conducive to the right understanding of its proper bearing upon the immediate subject of controversy, to look back upon the earlier evidence which .has been produced upon the hearing of the present case.

.The ■ foundation of . .the new province upon the has is of .the deeds from the Duke of York) the exercise of legislative power, the declaration of allegiance in New.Castle, and the union with the province of Pennsylvania, all approved •by the crown of England, have already been seen. The union appears to have been only a sort of league,. betraying a want of cordiality in the beginning, and leading very soon to uneasiness, and dissatisfaction; and after a-few years of restlessness and irritation, they finally separated, with Mr. Penn’s consent, in 1703. •In the following year an attempt was made to ■bring them together again, and the people of the lower counties would appear to have been willing; but the people of Pennsylvania-would not consent. From 1703, therefore, they be--came separate-provinces, to all intents and pur-' poses, (except that the government powers and right -of property in both were in Mr. Penn,) and so continued -till the Revolution. In this respect Judge Baldwin-was misinformed,- and supposéd' the-union to have remained uninterrupted. : -

• Very soon after the deeds, Lord Baltimore set up a claim to a large part of Pennsylvania, and to the' whole of the lower counties, quite to the Delaware river, upon the allegation that they were embraced in his patent. In 1685, the council, to whom the jurisdiction belonged, decided against him, directing a line to be run north and south, which is the present western line of the state of Delaware. Soon after, an agreement was entered into between Mr. Penn and Lord Baltimore, for settling all disputes between them.

In 1692, Mr. Penn was removed from his government, and Benjamin Fletcher was appointed by the crown. The alleged ground for this measure was, that disorder had occurred in his government. There was no question about title, nor was either province disturbed. They went on as before. In 1694, Mr. Penn was restored, and the government descended to his children. There has been a very general belief, that the real offence of Mr, Penn was his supposed regard for the Stuart family,-and particularly for James II. then banished from the throne and kingdom.

Ir and about the year 1711-12, a surrender of his government powers to the crown was contemplated by Mr. Penn, and it is understood that a negotiation for the purpose was considerably advanced, when his capacity to proceed further was arrested by illness, which prostrated his mind and memory for the remainder of his life. Pending the treaty, the crown consulted the attorney general, Edward Northey, and his opinion, as reported by him, is in Chalmers’ collection (volume 1, p. 32), dated February 25th, 1711-12. Mr. Northey, among other things, says, “and he has made out to me his title thereto,” that is, to the government of Pennsylvania, and of the “town or colony of New Castle, alias Delaware.” This was in the time of Queen Anne.

In 1717, the.Earl of Sutherland, alleging that he was a creditor of the crown to the amount of £20,000, applied for a grant of the three lower- counties. It was referred to the attorney and solicitor general, Edward Northey, be-fore mentioned, and W. Thompson. They made an elaborate report, which is published "by Chalmers (Id. p. 39), dated October 28th, 1717. They heard the parties, who were before them—the Earl of Sutherland on one side, and on the other, “Mr.. Penn's mortgagees and ■other purchasers under- him.” Mr. Penn took no part. They state, also, that no deed from the - crown was produced. For both these things they give a very sufficient reason, when •they say (page 45): “But they presume the said late Duke of York might have some other grants thereof, which Mr. Penn might give an account of, but cannot, ‘being under a lunacy.’ Mr. Penn died in the following year, 1718. They conclude their report by submitting for consideration, “whether it will not be reasonable that -your majesty’s title should -be established by the court of chancery, before any grant should be made of the premises.” This was in the reign of George I. .The application does not seem to have been further pursued, nor was any use made of the hint about chancery on that application. The title, therefore, passed undisturbed by the crown, through five reigns and a revolution, and the province ■ continued as it was founded in 1682, though it was always in view of the authorities of England, and as has been seen, frequently subjected to the examination of the king’s legal advisers.

In 1735, William Penn being dead, a bill was filed in ■ the high court of chancery, in England, by John Penn, Thomas Penn and Richard Penn, his sons, against Charles Calvert, Lord Baltimore, to enforce the performance of the agreement made in the preceding century, for fixing the boundaries between Pennsylvania and Maryland, and between Maryland -and the lower counties. Recurring now to the advice of Mr. Northey and Mr. Thompson to the crown, to have the question of title determined in chancery, there is no reason to doubt that this suit was allowed, if not directed, by the privy council. “It is certain,” says • Lord Hardwicke, replying to an objection to his jurisdiction, “that the original jurisdiction in eases of this kind, relating to boundaries between provinces, the dominion, and proprietary government, is -in the king and council.” “The king, in council, is the proper judge of the original right.” He adds, that the king, in council, might look upon the agreement, and allow it as evidence of the original right, but he could not decree it as an agreement. “And therefore,” he says, “the lords of the council have remitted this matter, very properly, to be •determined in another place, on the foot of the contract.” Lord Hardwicke was well aware of the questions to be decided finally in this case, as appears in the striking exordium of his judgment, “it being for the determination of the right and boundaries of two great provincial governments and of three counties, of a ■nature worthy of the -judicature of a Roman senate, rather than a single judge;” adding, “and my consolation is, that, if I should err in my judgment, there is a judicature equal in dignity to a Roman senate, that will correct it.” I Yes. Sr. 444, 445. No appeal was ever taken' to the house of lords.

In the decree, liberty was reserved to either ■party to apply to the court, if, by “any act or right of the crown,” execution of it ■ should "be obstructed. This liberty was never used. No act or right of the crown was interposed.

One of the objections, among many, made by Lord Baltimore, was upon the order of the ■deeds—that is, that the deed to the Duke of York was subsequent to his' two feoffments. Lord Hardwicke lays aside the doctrine of •estoppel, ■ evidently not because it was inapplicable,or insufficient in law for answering the objection,-but because the expression of it-was unnecessary, and perhaps inconsistent with the deference due to the crown. What his opinion was, is evident enough; for he says, “the-duke being in the nature of a common person, was in a condition-to be estopped.” Being liberated from the restraints of the lord chancellor, we are at liberty to say, that the duke, at the date of the deeds, being a subject, was, in this respect, only “a common person,” and as much bound by estoppel as any other subject. He did not succeed to the throne till two years after. Admitting it to be true (which cannot be admitted for reasons it would take too much-time now to enter into) that the king is not bound by estoppel, it would be an unreasonable and most unjust stretch of the prerogative to suppose-that, when a man-ascends the throne, he is liberated from all estoppels he had previously incurred as a private person. It might as well be contended that he is freed from all grants he had previously made; for the real equity of an estoppel, in such a case as this, is neither more nor less than to make the two deeds operate as one grant, and thus do plain justice between the parties. It is no subtlety nor refinement of law, but the natural dictate of common sense and common honesty. There may, perhaps, be instances of estoppel, such as’ from recitals and the like, which would affect a private man, and do not touch the king; and, on this account, what is now said is limited to the very case in question. The -conclusion is, that the deed of 1683 was an estoppel. ’

But there is another answer to the objection which satisfied Lord Hardwicke, and is fully satisfactory. If there were no estoppel, and the deed of 16S3 vested the legal right in the Duke of York, where it remained when he became king, he was a trustee, a royal trustee, and the equity would be in Mr. Penn, or in the people of the province, it matters not which. That the king can be a trustee, would seem to be settled, whatever may have been formerly thought-from a supposed analogy to the doc-' trine of uses. Lord Hardwicke is authority for this, in Penn v. Lord Baltimore, 1 Ves. Sr. 444. So is the Earl of Kildare v. Eustace, 1 Vern. 439. So is Burgess v. Wheate, 1 Eden, 223. Trusts have, in equity, a sort of independent-existence for their own preservation. With reference to the trustee, actual confidence in the person is not essential. Hence, a corporation may be a trustee, and so may the king. Indeed it is an established maxim of-equity, that a trust shall not perish for want of a trustee. The real difficulty, in the case of the king, is about the remedy. “The arms of equity,” says Lord Northington, in Burgess v. Wheate, “are very short against the prerogative.” Chancery, the appropriate forum of trusts, is without power, because it is said “it has no jurisdiction over the king’s conscience: for that it is a power delegated by the king to the chancellor to exercise the king’s equitable authority betwixt subject and subject!” So said by counsel in Pawlett v. Attorney General, Hardr. 468. Hence, the caution of Lord Hard-, wicke, in Penn v. Lord Baltimore, “I will not decree a trust against the crown in this court,” though he did not hesitate to declare his opinion that the king was a royal trustee. The right of the cestui que trust, however, is not questioned; nor is it questionable. There has been a suggestion that, in such cases, perhaps relief might be obtained through the exchequer, and the subject may certainly prefer a petition of right. But that is not material to the present purpose. If the. right be established, no remedy is wanted; and that the equity is sufficient to raise a trust is clear, as well from what has been stated, as also from the covenant for further assurance in the deeds of 1682. There was, at all events, therefore, an equitable estate, which is quite as available as a legal estate.

This decree of Lord Hardwicke settled the validity and legal sufficiency of these deeds, the right of the province under them, and, of course, its boundaries, as described in the deeds. No appeal was taken, nor did either party ever apply, under the reservation in the decrees, to set up any “act or right of the crown.” It was universally acquiesced in, and became, by its own force and common consent, the law of the land from that time forth, till the crown of England ceased to have power either to confirm or to dispute the rights about which it was made. Now, this was the same province which had been founded, as we have seen, in 1682; these were the deeds under which -it was founded; and these were the boundaries by which it had been defined from the beginning.

Twenty-four years more elapsed, without controversy or question in England, its boundaries acknowledged by the crown, (the crown, in truth, had never disputed them,) when the delegates from “New Castle, Kent, and Sussex, on Delaware,” on September 5th, 1774, met the delegates from the several colonies and provinces in .North America, assembled at the Car-enter’s Hall, in the city of Philadelphia. ournals of Congress 1774. New- Jersey had also delegates there, and so had Pennsylvania and Maryland, all immediate neighbours, by whom they were bounded.

As a province or colony they, were received, having a definite existence under the crown of England. Such as this province was under the crown of England on that day, such was she acknowledged to be by being received into that congress. On that day, we have seen this colony’s rights under the crown, and her boundaries, which were part of them, had stood the shocks of twenty years of controversy, and finally were settled by a solemn decree in chan-eery, and rested securely and quietly upon the foundations laid in 1082. In the struggles and hazards which ensued this province took her full share. On July 4th 1776, she declared herself a sovereign and independent state, by the name of “Delaware,” and by the united efforts of herself and her sister states was enabled to maintain it. But this state was the same that was a feeble colony in 1682, with the same metes and bounds;'the same that in her more advanced age had had her metes -and bounds judicially established by the high court of chancery, and, let it be added, whose boundaries had never been even questioned by the crown from the beginning, but in every way sanctioned. Could such a state, after all this, be called upon to vindicate her original rights? Lord Baltimore had a long “controversy with her, because their grants interfered. But it was settled in England before the Revolution. The state of Maryland has never claimed to revive it. With New Jersey there was no interference, nor is there now. New Jersey has bad no controversy with Delaware, and has none at present, so far as is known. When Delaware became a state there was no subsisting controversy with any body as to her boundaries. The change which then took place was from the condition of>a dependent province of the crown of England to that of an independent sovereign state, achieved by conquest. Allegiance to England was thrown off; the royal rights reserved by charter were ended, and with them the government powers of the proprietaries derived from the crown, and all their incidents. They fell together, at the same ■time. The blow was not struck at the proprietaries. It was aimed at the crown, and when it took effect there, the subordinate government gave way with the head it depended upon, and ceased to exist. As far as. there was any derivation in the case it was, in this sense, from the crown of England; and if there had been (as there was not) an outstanding royal claim of any sort, that, according to Martin v. Waddell, would have instantly become vested in the new sovereignty. Prom this-view it follows, unavoidably, that if the deed from the king to the Duke of York .had never-existed, but only the two deeds from the Duke-of York, still—as the province had been founded under them, had existed upon its original foundation for nearly a century, was de fácto-a province or colony, and received as such into the union of the colonies, and was by them all. declared to be a state of the Union, has been so ever since, and still is—it would be very-difficult indeed to maintain that her limits and boundaries were not incontestably proved by those deeds, unless they interfered with some-superiour and better right. The de facto existence became a legal one, to all intents and purposes, by the affixing of her own sovereign seal, which had superseded the great seal of England, and' acquired all its virtue and power. If necessary, this view might be carried even further. A colony or province, without any deed at .all, would, under the like circumstances, have become a state; and if, from July 4th, 1776, .to the present day, she lias been, and still is, a state of this Union, with the-same rights and privileges as the other states, and there were any authentick document to-prove her boundaries, (though not a royal patent or grant,) and they interfered with no other rights, it would be very difficult to impeach her title. But even if the royal consent or recognition were indispensable, it is surely to be found in the treaty of peace, for Delaware as clearly as for any other state. And now, it is proper to remark, that all the arguments urged against her upon the very question to be decided, namely, her rights in the river, the islands, and the soil, however they may profess-to be restricted, have one common fault; they go too far; they prove too much. They would take away the whole right of Delaware, land, river, islands, and all. Por example, one of the learned counsel has produced the charter or patent to Lord Baltimore, and insisted that it went entirely to the river Delaware. If so, and it is in force now, the whole ■ territory of Delaware on the main land would be taken away, and nothing left but the river right, if, indeed, that could stand alone. Whereas, as has been shown, the right between them was decided in council, November 13th, 1685, by ■fixing the present line; they entered into an agreement between them ip conformity, and the specifick performance of that agreement was decreed in chancery in 1750. The original right has never been open since. Judge Baldwin, on the other hand, allows her title to the main land to be good by possession, which, it is respectfully submitted, is a low and precarious ground to place the title of a state upon; but he seems to deny any right but possession, and altogether to deny it as to things which were not of a nature to be actually possessed. These objections are now too late, if they ever had any foundation at all. They were long ago decided and settled in England. They were decided and settled at the Revolution; and, as to her boundaries, they stood defined and authenticated in the deeds of the Duke of York, in the patent of the king, in the proceedings of council, and in the high court of chancery, never having undergone a change from what they were at the beginning.

This course of observation, however, must here be suspended for a moment to examine the construction of the deeds, as respects the immediate question upon original grounds, lest it might be supposed that they were doubtful or insufficient, or stood in need of aid, to give them a meaning they do not of themselves properly import. Upon a careful and deliberate consideration of the whole subject, and of the arguments urged against the right of Delaware, it is believed that the deeds are quite clear. The question is, did the boundaries of the province go into the Delaware within the twelve miles circle, or did they not? The first great rule in regard to such inquiries is,' that there is to be no interpretation where there is nothing that requires to be interpreted. If the words be clear in themselves, they are to be accepted. “Words,” says Rutberforth (Inst. Nat. Law, bk. 2, c. 7, § 2), “are the common signs thatmankind make use of to declare their intention to one another; and when the words of a man express his meaning plainly, distinctly, and perfectly, we have no occasion to have recourse to any other means of interpretation.” And for this he cites the support of Grotius. Book 2, c. 16, § 1. This is the same rule that is laid down by Blackstone. 1 Comm. 59. They all agree, too, that words are to be taken in their most usual and known signification; and technical terms and terms of art, according to the interpretation of the learned in each art, trade, or science. And how can it be otherwise? Words make contracts between parties, which are to be understood in one sense by both. How can that be, unless there be a standard to be resorted to, as nearly fixed as possible, especially, in the more important transactions of life? Now, if with this single rule, any man, learned or unlearned, will read .the Duke of York’s deed for the upper part of the province, and that part of the king’s deed which is for the same, he will be at no loss to say what it is that they grant.. They are the appropriate legal words for the purpose, and evidently used skilfully and upon deliberation, and with comparatively accurate knowledge, for the New Jersey grant and the grant to Lord Baltimore, and the charter of Pennsylvania, were all prior, and there had been a long contest with the Dutch and Swedes, who had settlements and forts on the west side of the Delaware river, -from Cape Henlopen to the' north line of the city of Philadelphia, where they had been in possession for nearly sixty years. Two. of the principal were within the twelve miles circle; that is, one at New Castle and one at the mouth of the Christiana. Besides, the words employed are the appropriate legal terms for making the grant. When the same subject comes up for judgment, the same terms are employed for describing what was granted, as may be seen in Martin v. Waddell, and Munday v. Arnold. The same terms were used, substantially, in patents and grants which conveyed or intended to convey navigable rivers, as in the patent to the Duke of York, the grant to Lord Berkeley and Sir George Car-teret. and from them to the proprietaries of New Jersey. There is still another test. If the object was to grant the river, islands and soil, could any lawyer or conveyancer have devised, or can any one now devise, a better or even as good a form of words to accomplish it? Strike them out, and all the other purposes of the deeds, it is true are effectuated without them. They are thus rendered surplusage. This would be an offence against another established rule of construction, which requires that all the words of an instrument should, if practicable. be allowed to have some sense and operation. But while these words stand, it seems to be impossible that now, after more than a century and a half, any one, and particularly any third person, and, above all, a third person without right, power or interest in the subject matter of the grant at the time it was made, and for nearly a century after, can claim to have them stricken out or disregarded.

The intimation by Judge Baldwin, in his charge, that the two grants are to be construed together as that one may control the other, so as to give them the same eastern boundary, with all respect for his learning and ability, cannot be admitted. In a legal estimate, they are not one deed, because they are two deeds; and they are not the same, because they are different. Why were they two. and why should they differ? The grantor so willed it. and he did as he willed, and as he had a right to do, in language evidently framed by learned advisers. They can well stand together, for there is no contradiction between them. If a man were to give estate A. in fee simple, estate B. in fee tail, and estate'C. for life or years, it would seem extraordinary to say that he gave the same estate in all.

Nor is .the difficulty overcome when the first step is taken. Admit (if it be possible) that the deeds' are thus to be construed, which of them is to have the controlling power? the one that carries the boundary over to the low water mark, on the Jersey shore, or the one that stops at the low water mark on the Delaware side? It is apprehended that there is no legal principle to aid in deciding that question, and that in the apparent search for reasons, we should find ourselves in the region of fancy and imagination. Of- what consequence can it be what were the reasons of the king and the Duke of York, or whether they had any reasons at all? Their will decided them to give what was their own, and they had a right .to give. If they were not deceived in the grant, (as certainly there is no reason to believe they were,) it is wholly immaterial whether the act commended itself to other men’s reason or not;. • whether it was wise, or unwise. Neither of them has had much credit with posterity for wisdom. But this act has never been imputed to them as a crime or folly. In the most sober judgment, it must rather be deemed reasonable and -meritorious. The three lower counties, at New Castle, had a width on the land of hut twelve miles, being cut off to the westward by the line between' them and Lord Baltimore. They had no great navigable Tivers. That line, probably running upon the summit between the Delaware and Chesapeake, where the heads of the streams were turned in opposite directions, probably left them no water communication with that great estuary and its tributaries. Their neighbours, New Jersey, -Pennsylvania and Maryland, all with extensive territories on the land, abounded also in great navigable rivers within their limits. Was it then, it may be inquired, so unreasonable to allot them, as a part of their possession, a little addition-to their width, by giving them a part of the river, reserving only the publick rights (navigation for instance) which were free and common to every subject, and now are to every citizen of the United States? Was it so unreasonable as of itself to condemn the grant, and compel a construction against the clear words to secure its condemnation? From the circle downwards, the breadth of the land increased, and did not so much demand enlargement. Besides, at the southern point where the circle strikes the water, the river begins to widen rapidly and becomes the bay, which there might be good reasons for not granting. There is nothing which seems at all unreasonable in the grant. It was made to freemen, capable of holding and enjoying it, of transmitting it to their descendants, who, in due time, asserted and maintained their right to independence; and in the conflict which ensued, and in all the duties of its more intimate union with the other states under the constitution, Delaware has contributed its full proportion of what was required for the publick welfare and honour. So has New Jersey. In this respect they are equal. But who can say that it was more unreasonable or less conducive to the well being and happiness of our country, or of mankind, that it should have fallen to the lot of Delaware rather than of New Jersey, or been left to be equally divided between them?

But this can hardly be called legal argument. There is too much in it that is apart from the real question. What is the construction of the grant? Is it in any respect wrongful? These are the true questions. Both are believed to be with the state of Delaware.

Returning to the point digressed from, when the question of construction of the deeds was taken up, it is only necessary to observe that the colony of the three lower counties having been received into the congress, became in due time a state. This -was a great change. But, great as it was, it was the whole change. No one ever thought that by becoming a state, the territorial rights and possessions previously belonging to it, were reduced or altered. Where was there a power to do either? Not, surely,in any other state. As surely, not in the congress of the' United States; and these two descriptions embrace the whole .circle of acknowledged authority. When the charters of some of the states were found tc include large masses of vacant land, which might be dangerous to the peace of the Union, did congress, or either or all of-the states, attempt to define or limit their boundaries? Congress invited them to make cessions, which they freely and patriotically did, by compact, and with the conditions they thought fit to insist upon and congress to accept. The Declaration of Independence, from the day it was made, is thenceforth the title of every state.

What remains, then, to be considered, may be embraced in this general inquiry: Has the state of Delaware, by any act or default of her own, parted with or lost the right she then had, or any part of it?

The examination of this question must, however, be preceded by an observation no one will refnse his assent to, which, nevertheless, when fairly carried out, will be found to meet and conclusively to answer most, if not all, the objections alleged to the title of the United States, derived from the state of Delaware. It is this: that the inquiry is to be understood as applied to a sovereign state, with all the attributes of sovereignty, except such as have been yielded to the United States. Whoever would claim from her, or would claim against her, must, therefore, make out such a case as will be available against a sovereign. More clearly must it be so, if the claim be to take from her a portion of her territory, and a part of her boundaries; not to come in under her and be one at her community, but to transfer them to an alien jurisdiction; in other words, to make them part and parcel of another state. Such is the claim made by Mr. Humphrey. The right he asserts is not under the state of Delaware, but adverse to her.

As long as the discussion was upon the boundaries of the respective states, every argument which conduces to show the right to be in one rather than the other, is fairly applicable and entitled to respectful attention, which they have accordingly received. But the moment that point is settled, and the boundaries established, all within the line on the respective sides is part of the territory of the one it is adjudged to, and it is subject to her exclusive sovereign jurisdiction. To her alone belongs the rightful power to govern and make laws for it, without interference by the United States, or by any state. That there was a dispute about boundaries, was a good reason for settling it; but none for holding it less the territory of the state after the dispute is settled, than any other part of her possessions. No one, for example, would affirm that what fell into Maryland or Delaware by fixing the line between them, or into Pennsylvania or Maryland, or into Pennsylvania or Virginia, by fixing their lines, is less within their jurisdiction than any other portion of the territories of these states. Wherever their limits are, up to that line, their law making power extends and governs. This principle,- believed to be undeniable, applies in full force to the present case. If it has been necessary, fór the purpose of deciding the controversy about the Pea Patch, to determine, incidentally, the question of the boundaries of the two states at that part of the river, (and it has been so argued on both sides,) and it has been determined that the island is within the territory of Delaware, it must follow that the island is also within her sovereignty; and whoever puts his foot upon it, is subject to her laws just as much as if he resided in New Castle or in Wilmington. Whoever would seek to recover it at law, must go' into her courts, including in that description the circuit court of .the United States,- where there are proper parties; a court established for administering the laws of the state, in civil cases, where one of the parties is an alien, &c of another state, or otherwise entitled to the aid of an United States tribunal: but still to administer those laws. In regard to the Pea Patch, there has been a conflict of jurisdiction. Dr. Gale brought an ejectment in the .circuit court of the United States for the district of New Jersey, recovered a judgment, and obtained an execution. The United States brought an ejectment in the district of Delaware, got a judgment, issued an execution, and the marshal of Delaware was authorized to turn out those whom the marshal of New Jersey had . been authorized to put in. Records of both were ■produced. Both were necessarily disregarded' as affecting the question now under consideration. The only thing certain about them was, that both could not have jurisdiction: and which of them had, depended upon exactly the same point as the present case turns upon, namely: whether the island was in New Jersey or Delaware. And it may also be remarked, that in one of them (Delaware) the judgment was by default; in the other, it was upon a trial essentially ex-parte, with a very imperfect exhibition of evidence, by no means to be compared with what has been produced in this arbitration.

Considering it to be established that the island is within the limits of Delaware, Mr. Humphrey is to make out a title to it in one of two ways: by showing that he has himself acquired it, in which case he must show that his acquisition of it has been under or according to the laws of Delaware; or that New Jersey has acquired it, and that her title enures to his use.

. As to the first, nothing has been alleged but possession; By the laws of Delaware, possession does not avail • against the state. The statute of limitation, between individuals, is truly said to be a law of peace. An exception to it. in favour of states, or a considerable extension of time in their behalf, may be as truly said to be a law of necessity; for states cannot occupy, as individuals, so as to have an actual manifest possession, which is notice; nor can they apply the same vigilance which is reasonably required of private proprietors. It is not necessary to dwell on this. Actual possession there has not been.- His honour, the late Judge Baldwin, says, that by the survey of 1784. and its acceptance by the-proprietaries, the Messrs. Hall, and Dr. Gale under them, stood in the place of the West New Jersey proprietaries, with all their rights. “His legal seizin or possession,” continued for thirty-one years, till 1815, would bar the right of entry of any adverse claimant. Had the right been in the proprietaries, and the island within New Jersey, the legal seizin or possession, as before stated, would have accompanied the grant. But neither part of the postulate is correct. The proprietaries had no right, as has been seen, and the island was not within New Jersey. When Dr. Gale, or some one claiming under him, obtained the title of the state, in 1831, he could get no legal seizin, for one of the reasons already stated; and for this additional one, that the United States were then in actual adverse possession.

Thus, then, there was no legal seizin or possession. That there was no actual possession under the survey, worthy to be so called, or to found a right upon, seems to be an unavoidable inference from the evidence. The survey could not have been made on the ground. Its date, 1784, is near the time when the island was about the size of “a man’s hat,” and overflowed every high tide. There was no resting . place upon it for the surveyor’s foot or his instrument. But there is something else, much more conclusive. The surveyor returns the contents to .be 178 acres. More than fifty years afterwards, when the island had been growing all the time, it contained by accurate measurement, only 87.60 acresr-f The surveyor, therefore, did not begin a possession, though he made a sufficient survey if the proprietaries accepted it, as they certainly did. No survey, indeed, was necessary, for an island is sufficiently defined by the waters. The only other evidence of possession is, that in the spring of 1813, April or May, Dr. Gale took down a large party of men. The witness who proved it was one of the company. He said they went there to fish, and it was stated that Dr. Gale had in view to make a. fishery, but it did not answer, on account of the strength and direction of the currents, which swept the nets into deep water and let "the fish escape. They found upon the . island .a rough frame house, recently erected, ^probably by Dr. Gale,) of one story in height, with one room in it, and no chimney or fire-place. They used, for cooking, a stove they carried down in a boat and brought away with them. They left the island in August, and, as ■ far as appears, never returned. What became of the house is not in proof. The occurrence just related was after the military officers of the United States had fixed their attention upon the spot as a site for the defence of the river. About the same time, General Bloomfield, who was in command of the military district, went to Delaware to negotiate a cession of the island to the United States, being himself a citizen of- New Jersey, and having been her governour and ex-officio chancellor, and it is reasonable to suppose acquainted with her rights. In December 1814,- Captain Clarke, of the United States topographical engineers, under orders from the war department, taking with him one hundred soldiers and some thirty or forty workmen, and the frame of a block house, went upon the island to commence the work of a fortification, and remained there till June, 1816. He states that there was nobody on the island. when he went there, nor any building or “vestige” of one, and that nobody was there during his stay but those under his command. From the survey, then, until 1816, there was no possession, and from that time the United States have been in possession. The fishing visit of 1813, cannot be called a possession, and if, connected with Dr. Gale’B claim of title, it might be so termed for the time, still it was abandoned, leaving no mark of ownership. There was no actual possession, therefore, even if that could have been available. The evidence is that the island was occupied only by crows, selected by them as a lodging place for its solitude and security.

Has the state of New Jersey acquired any right under which his claim could be covered? If a ease were established, in point of fact, it would be necessary to inquire how such a right could be acquired by New Jersey, the territory in question being within the state of Delaware, and subject to her laws and government. But it does not seem requisite to enter upon that inquiry, inasmuch as the proofs are deemed’ to have made out no such case. The controversy, it will be seen, embraces two descriptions of rights, namely, the river and the soil under it. and islands in the river. The former is not susceptible of actual possession—the latter are. To begin with the latter. The evidence is, that within the twelve miles circle, before the Pea Patch made its appearance, there were only two islands, (so called,? Beedy Island and Bombay Hook. They have both been in the possession and under the jurisdiction of Delaware. Bombay Hook, it is believed, cannot with propriety be called an. island in the river. It lies within the line of the main land of Delaware, above the low water mark of the river, and has been surrounded by' water only by reason of an artificial outlet being cut for Duck creek into the bay. There remains then, only Reedy Island. It may be said that it lies nearest to the Delaware shore. But it was in the river, and if the right to the river and islands was in the crown, while Delaware waB a province, Delaware could have no right in Reedy Island, whether it was on one side'/br the other of the channel. Her possession, as of right, is thus a strong proof that her title was prior to that • which would have accrued to her by the devesti-ture of the right of the crown, and the leaving of the river vacant between two states. New •Jersey had no -island within the twelve miles circle.

A passage in Smith’s History of New Jersey, it was thought, disclosed some right - of New Jersey to an island there called Stuypson’s Island. The author, in giving an account of a negotiation with the Indians, says: “Also Stuypson’s Island, near Delaware river. - Tom Store claims thirty acres,” &c. The island was not found upon the map during the investigation, being searched for in the river, though Smith’s language, “near Delaware river,” indicated that the distance was not from the land into the river, but from the river into the land. A close examination since, has-shown that it is what may be called an “inland island,” formed by small streams, with, perhaps, the river on one side, but above the low water mark, and within the outline of the land, as “Bombay Hook,” is on the other. It is far below the twelve miles circle, and is undoubtedly a part of New Jersey, by her original right; but not an island in the river or bay.

Something was also said about Egg Island, but no evidence given. From the map it appears to be a very small island, low down in the bay, out of the circle, lying near the main land of New Jersey. Whether it is separated from the main, or adjoins it, by whom it is held, if by any body, and under what tenure, there is no proof in the case. New Jersey, or those claiming under her, had no island within the twelve miles.

As to (he Pea Patch Island, New Jersey had at no time possession, and cannot be said to have set up a right to it. The contrary is quite clear. The right asserted was that of the West New Jersey proprietaries, which, as has been seen, was adverse to the state, and could not in any way enure to her use. So of the right of Dr. Gale and those deriving from him. And when, at last, it came to be doubted whether the proprietaries had any right at all, and when the United States were in actual possession, and New Jersey was asked for an act, that act did not assert any title, but only released her right and interest, whatever it might be. Delaware, on the other hand, was in possession, as far as a state could be. There is satisfactory evidence as to one individual residing on the island after the United States entered upon it; that he was assessed and voted in Red Dion hundred.

So much for the islands. Now as to the jurisdiction. There is nc evidence to establish a single instance of its exercise by New Jersey over that part of the river and islands, and there is no reason to believe that there was one. One witness was called, to show that process from New Jersey had been once served upon the Pea Patch Island, in recent times: but it failed entirely. There was no process; there was no arrest, and all that was made out was that a constable from Salem county came with a pistol, and- went away without a prisoner. The ejectment in the circuit court of the United States for the New Jersey district, is of no weight. It was brought by an individual, of his own authority; it was after this controversy had begun, and for the purpose of determining this controversy.

On the part of Delaware, the evidence is full and complete of the exercise of jurisdiction over that part of the river and islands, as far back as evidence can be expected to go. The process of her courts, and of the courts of the United States sitting in that district, for the arrest of persons and property afloat, has been issued and executed, and continues so to be, quite over to the low water mark on the Jersey side; and this, not occasionally, but habitually, without doubt or question, ás a matter of course, whenever applied for. Such arrests have been made of persons and property escaping from above. The cases have been contested upon every ground that ingenuity could suggest, or the zeal of parties prompt; but there never has been an instance of any one disputing the jurisdiction* in the courts either of the state or of the Union. This must be admitted to be very persuasive evidence. In the absence of. proof to the contrary, it must be deemed conclusive.

Now, this evidence comes from numerous witnesses, of great intelligence and unquestionable credit, well informed upon the subject they speak of, by their-pursuits in life, and it-coincides (for it did not require slipport or corroboration) with the proof of particular instances; both- by parol and exemplifications of records here produced. The exhibition of the evidence at large, or even a considerable part of it, would be tedious and unnecessary. The whole was carefully reduced to writing, and will be preserved.¹⁰ -But it is quite impossible to look at the list of-witnesses without feeling unbounded confidence that; from their own experience, and from the traditions and other sources of information of the past, which lawyers and judges are obliged to explore, and to follow as their guide, we have the whole knowledge of what has-been-held-and done from an-early, perhaps the' earliest, period, concentrated and condensed in this body of testimony. With nothing to contradict it, (and there is nothing,) one might safely say, such has always been the law of Delaware. Kensey Johns, Esq. for example, above eighty-eight years of age, states “that he has resided in New Castle since 1780, now sixty-seven years. He was a practising lawyer for twelve years, afterwards chief justice of the supreme court for thirty-eight years, afterwards chancellor of-the state, since that time, and at present, living a private' gentleman.” Any one else, speaking of him, would -add, and during the whole of this lengthened period, exercising a most wholesome influence by example and precept, upon the minds and morals of the community he lived in. He says: “It has always been considered and held by the courts, publick officers and lawyers of Delaware, as far as my memory reaches, that the title and jurisdiction of the state of Delaware, extended to a circle of twelve miles around New Castle, to low water mark on the New Jersey shore. I have never heard the title and jurisdiction of the state of Delaware, over that part of the river Delaware, doubted by any court, publick officer or lawyer in Delaware, on any occasion whatever. Within my knowledge and remembrance, writs have been often issued out of the courts of Delaware, to seize vessels and persons in all parts of the river Delaware, within the circle to low water mark on the New Jersey shore, and no dispute, question, or plea was ever made or - suggested,- within my memory, before any court in Delaware, against the title of Delaware over all-such parts.” And, again: “The state of Delaware, for the whole period of my remembrance, and as far back as my researches extend, has claimed and exercised jurisdiction over the Delaware river, and soil thereof, within the circle, to low water mark on the Jersey shore, and the state has never failed to exercise this jurisdiction when called upon or asked to do so.” Eleven other witnesses, eminent citizens of Delaware, with large means of knowledge, whose names, if repeated, would command respect for their testimony, make similar statements, and some of them give an account of particular cases of arrest and seizure, known to them personally. John Steele, also a citizen of Pennsylvania, gives an account of his following a vessel down the river, getting process against her from a court in Delaware, and having it executed far ovei on the east side of the river.

New Jersey, as before stated, never objected to the claim of Delaware, nor, as far as appears, set up any claim of her own. In 1709' the boundaries of counties were fixed by an act of the legislature. Those on the Delaware were bounded -on the west by the river, the lines running along the river shore, and not into the river. In 1822, it is true, an act was passed to extend one or more of the lower counties into the river. But this was after the United States had obtained the cession from Delaware, was in -actual possession, and this controversy had begun. Besides, of what avail is such an act of the legislature, except as some evidence (under -the circumstances just men-tioned, very feeble, indeed) of a belief of right,, and keeping up of a claim over her -own territory. A constitutional act of a state legislature, touching any part of such territory, is undoubtedly potent, and is notice to all the world; but as to territory of another state, it is inoperative, and it is notice to nobody. This-act, therefore, -is of no effect.

Upon all the grounds thus reviewed, the-conclusion is, that the-title to the Pea Patch Island was in the state of Delaware. On May 27, 1818, that state, by an act of her legislature, ceded it to the United States-upon conditions-having regard to the publick benefit, and not for any selfish interest of her own. No doubt can be entertained that New Jersey would, in the like case, have done as her sister Delaware did, had she been free to do so. But a private-claim had intervened, which she had no rightful power to dispose of; and, if it has so happened that, after a long and costly litigation, that claim has proved to be unfounded, it is to be regretted that the claimant should have been put to useless expense- and trouble; but this feeling can have no influence in determining the question of right.

By the cession of Delaware the title passed' to the United States. The award, therefore, must be, and is, that the title is in the United States.

Award.

Under and by virtue of the foregoing agreement and submission, having heard the parties by their counsel, their proofs and allegations, and duly and deliberately considered the whole-matter, and weighed the evidence and arguments on both sides, I do hereby award that the title to the Pea Patch Island is in the United States.

In witness whereof, I have hereunto set my hand and seal, this fifteenth day of January, in the year of our Lord one thousand eight hundred and forty-eight, at the city of Washington..

JOHN SERGEANT. (Seal.)

Witness:

JOHN WM. WALLACE, Secretary of the Reference.

JOHN M. CLAYTON, Senator from Delaware.

WILLIAM L. DAYTON, Senator from New Jersey.

10 This, with the other evidence and proceedings in the case, all which were recorded by the secretary of the reference, was transmitted by the arbitrator, after making his award, to the office of the solicitor of the treasury of the united States. A call was subsequently made by the senate for these papers. Having been transmitted to that body and read there, they were ordered to be printed, and will be found among the senate documents (Executive, No. 21) of the first session of the 30th congress.