41 U.S. 367 (1842), Martin v. Waddell's Lessee

Citation:41 U.S. 367, 10 L.Ed. 997
Party Name:MERRIT MARTIN and others, Plaintiffs in error, v. The Lessee of WILLIAM C. WADDELL, Defendant in error.
Case Date:February 09, 1842
Court:United States Supreme Court
 
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Page 367

41 U.S. 367 (1842)

10 L.Ed. 997

MERRIT MARTIN and others, Plaintiffs in error,

v.

The Lessee of WILLIAM C. WADDELL, Defendant in error.

United States Supreme Court.

February 09, 1842

OPINION

ERROR to the Circuit Court of New Jersey. The defendant in error, the lessee of William C. H. Waddell, instituted, to April term 1835, in the circuit court of the United States for the district of New Jersey, an action of ejectment, against Merrit Martin and others, for the recovery of certain land covered with water, situated in the Raritan bay, below high-water mark, in the state of New Jersey. The defendants appeared to the suit; and at April term 1837, the cause was tried by a jury, who found a special verdict, on which judgment was afterwards entered for the plaintiff; from which judgment, the defendants prosecuted this writ of error.

COUNSEL

The case was argued by Wall and Wood, for the plaintiffs in error; and byOgden and Wright, for the defendant.

The special verdict found, that on the 12th day of March 1664, certain letters-patent, duly executed, were granted by Charles II., then King of England, to James, Duke of York; and set forth the letters-patent at large. The letters-patent stated, that the king----

'For divers good causes and considerations us thereunto moving, having, of our special grace, certain knowledge, and mere motion, given and granted, and by these presents, for us, our heirs and successors, do give and grant unto our dearest brother,

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James, Duke of York, his heirs and assigns, all that part of the main land of New England, beginning at a certain place called or known by the name of St. Croix, next adjoining to New Scotland, in America; and thence extending along the sea-coast, unto a certain place called Petuaquine, or Pemaquid, and so up the river thereof, to the farthest head of the same, as it tendeth northward; and extending from thence to the river of Kennebeque, and so upwards, by the shortest course, to the river of Canada northward; and also, all that island or islands, commonly called by the several name or names of Matowacks or Long Island, situate, lying and being towards the west of Cape Cod, and the Narrow Higansetts, abutting upon the main land, between the two rivers there, called or known by the several names of Connecticut or Hudson rivers; together also with the said river called Hudson river, and the lands from the west side of Connecticut to the east side of Delaware day. And also, all those several islands called or known by the names of Martin's Vineyard and Nantucks, or otherwise Nantuckett (whereof the tenements aforesaid, with the appurtenances in the declaration aforesaid mentioned are parcel); together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowlings, and all other royalties, profits, commodities and hereditaments to said several islands, lands and premises belonging and appertaining, with their and every of their appurtenances, and all our estate, right, title, interest, benefit, advantage, claim and demand, of, in or to the said lands and premises, or any part or parcel thereof, and the reversion and reversions, remainder and remainders, together with the yearly and other the rents, revenues and profits, of all and singular the said premises, and of every part and parcel thereof: to have and to hold, all and singular the said lands, islands, hereditaments and premises, with their, and every of their, appurtenances, hereby given and granted, or herein before mentioned, to be given and granted, unto our dearest brother, James, Duke of York, his heirs and assigns for ever; to be holden of us, our heirs and successors, as of our manor of East Greenwich, in our county of Kent, in free and common socage, and not in capite, nor by knight-service, yielding and rendering. And the same James, Duke of York, doth, for himself, his heirs and assigns, covenant and promise

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to yield and render unto our heirs and successors, of and for the same, yearly and every year, forty beaver-skins, when they shall be demanded, or within ninety days after. And we do further, of our special grace, certain knowledge, and mere motion, for us, our heirs and successors, give and grant unto our said dearest brother, James, Duke of York, his heirs, deputies, agents, commissioners and assigns, by these presents, full and absolute power and authority to correct, punish, pardon, govern and rule all such the subjects of us, our heirs and successors, as shall, from time to time, adventure themselves into any the parts or places aforesaid, or that shall or do, at any time hereafter, inhabit within the same, according to such laws, orders, ordinances, directions and instruments, as by our said dearest brother, or his assigns, shall be established, and in defect thereof, in case of necessity, according to the good discretion of his deputies, commissioners, officers or assigns, respectively; as well in all causes and matters, capital and criminal, as civil, both marine and others, so always as the said statutes, ordinances and proceedings be not contrary to, but as near as conveniently may be, agreeable to the laws, statutes and government of this realm of England; and saving and reserving to us our heirs and successors, the receiving, hearing and determining of the appeal and appeals of all or any person or persons of, in or belonging to the territories or islands aforesaid, in or touching any judgment or sentence to be there made or given. And further, that it shall and may be lawful, to and for our said dearest brother, his heirs and assigns, by these presents, from time to time, to nominate, make, constitute, ordain and confirm, by such name or names, style or styles, as to him or them shall seem good, and likewise to revoke, discharge, change and alter, as well all and singular, the governors, officers and ministers, which hereafter shall be by him or them thought fit and needful to be made or used, within the aforesaid parts and islands; and also to make, ordain and establish all manner of orders, laws, directions, instructions, forms and ceremonies of government and magistracy, fit and necessary for and concerning the government of the territories and islands aforesaid, so always that the same be not contrary to the laws and statutes of this our realm of England, but as near as may be agreeable thereunto, and the same, at all times hereafter, to put in execution, or abrogate,

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revoke or change, nor only within the precincts of the said territories or islands, but also upon the seas, in going and coming to and from the same, as he or they, in their good discretion, shall think to be fittest for the good of the adventurers and inhabitants there; and we do further, of our own special grace, certain knowledge, and mere motion, grant, ordain and declare, that such governors, officers and ministers as, from time to time, shall be authorized and appointed, in manner and form aforesaid, shall and may have full power and authority to use and exercise martial law, in cases of rebellion, insurrection and mutiny, in as large and ample a manner as our lieutenants in our counties within our realm of England have or ought to have, by force of their commission of lieutenancy, or any law or statute of this our realm; and we do further, by these presents, for us, our heirs and successors, grant unto our said dearest brother, James, Duke of York, his heirs and assigns, that it shall and may be lawful to and for the said James, Duke of New York, his heirs and assigns, in his or their discretion, from time to time, to admit such and so many person or persons to trade and traffic unto and within the said territories and islands aforesaid, and into every or any part or parcel thereof, and to have, possess and enjoy any lands or hereditaments in the parts and places aforesaid, as they shall think fit, according to the laws, orders, constitutions and ordinances by our said brother, his heirs, deputies, commissioners and assigns, from time to time, to be made and established, by virtue of, and according to the true intent and meaning of, these presents; and under such conditions, reservations and agreements as our said brother, his heirs or assigns, shall set down, order, direct and appoint, and not otherwise, as aforesaid; and we do further, of our special grace, certain knowledge, and mere motion, for us, our heirs and successors, give and grant unto our said dearest brother, his heirs and assigns, by these presents, that it shall and may be lawful to and for him, them or any of them, at all and every time and times hereafter, out of any of our realms or dominions whatsoever, to take, lead, carry and transport in and into their voyages, and for and towards the plantations of our said territories and islands, all such and so many of our loving subjects, or any other strangers, being not prohibited or under restraint, that will become our loving subjects, and live under our allegiance, as shall willingly

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accompany them in the said voyages; together with all such clothing, implements, furniture and other things usually transported, and not prohibited, as shall be necessary for the inhabitants of the said islands and territories, and for their use and defence thereof, and managing and carrying on the trade with the people there, and in passing and returning to and fro; yielding and paying to us, our heirs and successors, the customs and duties, due and payable, according to the laws and customs of this realm. And we also, for us, our heirs and successors, grant to our said dearest brother James, Duke of York, his heirs and assigns, and to all and every such governor or governors, or other officers or ministers as, by our said dear brother, his heirs or assigns, shall be...

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