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nate to the satisfaction of both parties.-N. Y. On Tuesday, at 9 o'clock A. M.-410 miles in 48 hours!

Gaz.

BANK OF THE UNITED STATES.-The following list "French influence."-A good deal of noise has of the branches of the U. States bank now in op-been made in the papers about certain "Furniture” ration may not be unacceptable to the public, who imported from FRANCE for the president's house. have not before had them in one view. Offices of It turns out as we expected-the "furniture" condiscount and deposite are in operation a-Ports-sists exclusively of porcelain, mirror plates and mouth, New-Hampshire; Boston, Massachusetts; carpets, and a few such other small articles as are Providence, Rhode Island; Middletown, Connecti- not manufactured in the United States. cut; New-York, New York; Baltimore, Maryland; A living female elephant has been brought to Washington, District of Columbia; Richmond, Vir- New-York from Calcutta. She was insured at $5000 ginia; Norfolk, Virginia; Charleston, South Caroli- and the freight paid was $8000. na; Savannah, Georgia; New Orleans, Louisiana; Cincinnati, Ohio; Lexmgton, Kentucky.

The Vevay, Indiana, Register of the 21st ult. says, Branches have been established at Louisville in of the vine dressers, it having produced five thou the vintage is just finished to the satisfaction Kentucky; Chillicothe in Ohio; Pittsburg in Penn- sand gallons of wine; the best vines yielding 350 sylvania; Fayetteville in North Carolina; and Augus- gallons to the acre-which however, it is observed, ta in Georgia, which are not yet but soon will be in falls far short of the common crops on the lake of operation.-Nat. Int. Geneva, which are said sometimes to have yielded 2500 gallons per acre. The causes of this differ ence ought to be enquired into.

A bank has just gone into operation at Shawnoetown, in the Illinois Territory, of which Samuel R. Campbell is president, and John Reeves cashierhaving been chartered at the last session by the legislature of that territory.

Emigration.-Through New-York and down the Alleghany river is now the tract of many emigrants from the east to the west-260 waggons has passed a certain house on this rout in nine days, besides many persons on horseback and on foot. The edi. tor of the Gennessee Farmer observes, that he himself met on the road to Hamilton a cavalcade of upwards of twenty waggons, containing one compa. A steam pump has been erected at Alexandria. It ny of 116 persons, on their way to Indiana, and all is in successful operation, and will discharge 1500 from one town in the district of Maine. So great is the emigration to Illinois and Missouri also, that it gallons per minute. TENNESSEE. From the National Intelligencer. An is apprehended that many must suffer for want of appeal to the sense of the people has been autho-provisions the ensuing winter. rized, by the requisite majority of two thirds of the A lord amongst us! It is currently reported (says legislature of Tennessee, on the expediency of cal the New York Mercantile Advertiser) that a young ling a convention to amend the constitution of that man named Williams, who keeps a retail store, at state; on which the people are invited to vote, aye Middletown, Connecticut, is ascertained to be the or no, at the next general election. This is the rightful heir to an earldom in England, with an most democratic process of any of our governments income of 15,000 sterling per annum; and that dosubmitting the question to the people, individual-cuments authorising him to take immediate posly, for their opinion, without any representative in- session of his estate and title, have just been retermediation. ceived. We understand his parents emigrated from Bermuda. He is said to be a man of fair character, and of unassuming manners,

It was expected that a proposition would be introduced into the legislature of Georgia to tax the branch of the United States' bank established at Savannah. It appears that the branch of the old bank at that place was taxed, and that the tax was regularly paid.

The following resolution bas been introduced in to the legislature of Tennessee, by some one who dreads the introduction of the national bank et dona

Puzzle for lawyers.-In one of the counties of Hungary, a case has been produced by nature, which furnishes the Hungarian lawyers with an op"Be it resolved by the general assembly of the state portunity to exercise their ingenuity. On a steep of Tennessee, That they do greatly regret the neces-declivity of the river Hernath, lay two vineyards, sity which impels them to declare, that they will one above the other: the higher one, detaching itview with concern and disapprobation the establish- self from the rock, glided down the declivity upment of any bank, branch of any bank or other mo- on the lower vineyard, which it now entirely covers. nied institution, not chartered by the laws of this -The question is, who is the owner of this vine. state, within the limits thereof; and they do feel yard, and who is considered the loser. themselves under all the ties of responsibility which |

ferentes into that state. The fate of the motion does not yet appear.

bind the representative to the people, so use all law- We learn, with regret, that many of the brave solful means in their power to prevent and prohibit the diers of the late army, travel to the seat of govern same." ment, (some of them from wounds in service, ill Show. There was a great fall of snow at Thomas-able to travel) to obtain patents for their bounty ton, Maine, on the 6th inst.

Commerce. On the forenoon of the 13th inst. there sailed from New York-3 ships for Liverpool, 4 do. and 3 brigs for Savannah; 3 ships for France; 2 do and 1 brig for Charleston; 3 ships and 1 brig for the West Indies; one ship for Washington city; 1 do for Amelia; 3 brigs for New Orleans; 1 brig for Lima, and several others. New York is, probably, the second commercial city in the world—London being the first.

Despatch-Letters from Baltimore to Norfolk, by the packet Experiment, on Sunday morning last, had answers returned by the steam boat Virginia,

lands.

The war department and general land office, have not been sparing in public notifications, that neither trouble nor expense is necessary to enable a soldier to obtain his patent.

We consider it a duty of every good citizen who may know a soldier, to inform him by sending his discharge to the war department; or his land warrant to the general land office, and a request to have his land in Illinois territory, and his patent sent to his place of abode, he can obtain his patent in a few days free of every expense, even of that of postage. Nas. Int.

NEW SERIES. NO 15-VOL. I] BALTIMORE, DECEM. 6, 1817. [No. 15-VOL. XIII. wuote No. 327.

THE PAST-THE PRESENT FOR THE FUTURE.

PRINTED AND PUBLISHED BY H. NILES, AT $5 PER ANNUM, PAYABLE IN ADVANCE.

To Editors of Newspapers.

taken in it, and vessels of considerable burthen GENTLEMEN:-In the last number of this passed along it with ease; that Charles Carroll be came seized in fee simple of the whole of the tract paper an article of considerable interest to our called Todd's Range; that on the 18th day of April, craft, and of some interest, also, to the public 1757, Carroll conveyed a part of Todd's Range ly at large, was copied from the Richmond Coming on the north west side of Jones' Falls to William piler. To carry its design partially into effect, Lyon, in which conveyance to Lyon the left bank of that water course is called fr as the boundary; it is respectfully requested that at least one that on the 20th May, 1757, Carroll conveyed anoeditor in every state, &c. will be so obliging as ther part of Todd's Range, lying on the right bank of Jones' Falls, calling for its margin as the Bounpublicly to answer the following query:

How many newspapers are published in the dary, to Alexander Lawson; that some time in the ? Describe year 1784, certain owners of the land on the left state, territo y or district of whether they are daily, tri-weekly, semi-week-side of Jones' Falis, for their own benefit, and with ly or weekly-Give their names, with that of the consent of Lawson and of hose claiming under very circuitous bend of this stream of water, begin. their editors, and of the cities, towns or vil-Lyon, dug a canal across the isthmus, formed by a lages in which they are located--state their ning above and terminating below the land in conpolitical character, with an account of the troversy, so as finally to direct its waters entirely sheet, whether imperial, super-royal, &c. on through the canal, and cause that portion of the which they are printed-And add such other original navigable bed, a part of which is now the particulars as may appear useful to assist in land in controversy, to be, in the course of a few the formation of a general table to shew the years, wholly abandoned; that after these conveystate and condition of the press in the United States.

*

And, at the same time, to accomplish an object very important to the public, give a perfect list of all the INCORPORATED BANKS in your state, territory or district-with the amount of their capitals, the places at which they do business (including their branches, if any) and the names of their presidents and cashiers; and if any are in disrepute, in their own neighborhood, please to designate them.

All the information afforded on either of those subjects shall be methodically arranged in a tabular form, for common reference; and the facts that belong to them shall be recorded as they are made known to me, for annual expositions.

Interesting Law Case.
OPINION OF JUDGE BLAND, DELIVERED IN BALTIMORE
COUNTY COURT, Nov. 3, 1817.
Charles C. Brown and others, lessee—
Baltimore county court,
September term, 1817.

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Mordicai Kennedy.

ances, and the bed of this stream had become in many parts dry fast land, and no longer admitted a passage for its waters, Charles Carroll, son and heir of the Carroll who, being seized in fee of the whole tract called Todd's Range, had conveyed parts of it to Lyon and to Lawson, on the 26th day of January, 1795, conveyed all his right to the land which then was or had been covered by the waters of Jones' Fails to Smith and Williams, under whom the defendant claims.

The lessors of the plaintiff claim under Lawson, and allege, that the patent for Todd's Range passed all the lord proprietary's right to the soil under the navigable water of this stream, subject to the uses of navigation merely, to James Todd and thence to Carroll, and consequently the deed from Carroll to Lawson, by calling for Jones' Falls as the boundary of the land, virtually conveyed to him the bed of the river to the middle of the stream; to the possession and enjoyment of which land, being now a firm, elevated and fast alluvial formation, or derelicdion, he asks by this action to be restored.

The defendant claims under Lyon and Smith and Williams, and repels the plaintiff's pretensions on the principies, that the right to the soil of the bed of this navigable stream called Jones' Fails, so far as it was navigable, could not be, and, therefore, This is an action of ejectment brought to recover was not aliened by the lord proprietary; or if it a parcel of land which constituted the original bed was, that the deed o Lawson under whom he claims of that stream of water, which passes through the will not authorize him to extend his pretensions farther than the margin of Jones' Falls which is the city of Baltimore, called Jones' Falls-It appears, precise line called for; or in other words, that the that on the first day of June, in the year 1700, a pa- right of the state to the soil, once covered by the tent was obtained from the lord proprietary by navigable water of this river, never has been parted James Todd for a tract of land called Todds Rang with, or if it has, it is now vested in him by virtue that at the time the patent issued to Todd this of the deed to Smith and Williams, in neither of stream of water, called Jones' Falls, passed entire ly through it, and was, for some distance beyond that which is now designated as the piece, from which the plaintiff alleges he has been ejected, in tide flowed and re-flowed into it, sea-fish were every sense of the expression, a navigable river, the *If any part of the capital is not paid m, state the amount unpaid in a note. VOL. XIIL

-15.

which cases can the plaintiff recover.

It is a

This is a case in many respects anomalous in its nature; one of much intricacy, and to which there siderable, and above all, it is one involving princi have been few if any parallel in this state. case, in which the value in controversy is very conpies and consequences, that may in their operation deeply and materially affect this great commercial

city, one of the fairest and most flourishing of the union; and, therefore, I deemed it proper to take time to reflect, and to bestow upon it as close an investigation as my daily duties here, and few leisure moments, would possibly admit. I felt called on by the very important bearing of this case, to endeavor to cast some few rays of light upon those questions, which it has now become so indispensably necessary to decide, and which are so extensively interesting in their nature, as they passed from me to their ulterior destination, where they will no doubt be in every respect fully explored and finally put to rest.

This is a controversy about the right to the origi. nal bed of a stream once navigable, now diverted from its ancient course; about a part of a piece of land once covered with navigable water in which sea-fish were taken, and on which large vessels floated, but which is now dry, elevated fast land, laid out into streets, some of which are paved, and improved upon by as commodious dwellings as any in this growing city.

What is meant by a navigable river-in whom is the soil of the beds of the navigable rivers of our country vested-could such soil have been aliened during its submersion by the late lord proprietary, or has it in any case or by any authority been aliened, and vested in an individual for any purpose?

ous and out of repair, the public have a right to go on the adjoining land: but if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands, 3. T. R. 263. In the case of terreous highways the public has no other right than, that of a free passage for every citizen; but the freehold and all profits belong to the owner of the soil-So do all trees upon it, and mines un. der it, which may be extremely valuable. The owner may carry water pipes under it; or he may get his soil discharged of the servitude or easement of a way over it, by a writ of ad quid damnum, 1. Burr, 143. And where no person claims the property of the lands on either side of the road, the presump. tion is in favor of the lord of the manor; but if the road goes through the property of others, the presumption is in favor of the owners of the land on each side; but, in either case, the presumption only stands till the contrary be proved, Loft. 358.

prietor of the tract thro' which they pass, or to the owners of the land on either side where it is called for as the dividing line; in which case the grant conveys the right to the soil of the bed to the mid. dle of the stream. 5. Bac. Abr. 494.

But by the common law of England the right of property in the soil of the bed of all navigable ri vers is presumed to be in the king, 5. Bac. Abr. 497. And if any one claims any special privilege or right in it, the proof lies on him, and he must shew a distinct grant or a clear and specific right, 1. Mod. 105. This however is not the case with regard to streams of water not navigable; for the These are enquiries certainly of the greatest beds of such water conrses are granted as other consequence and most extensive interest; for, if lands, and consequently belong wholly to the pro the upper end of the tide waters of this branch of Patapsco river, called Jones' Falls, which at one time afforded passage and harbor for vessels of considerable burthen, could be aliened and vested in an individual, by one common grant, to be obtained in the usual way, from the land office, then any part of the bed of the same river below, even that over which the fleet of the late enemy rode during the late gallant and memorable defence of our city, might in like manner be granted and vested in an individual, so as to prevent the erection of some of the most important nautical improvements, without in some degree violating the private right of such individual. The advantages, indeed the very invention, and all the blessings derivable from navigation are, comparatively, of modern date. The infant art, but just discovered, led the way to our continent, and has been most materially developed in exploring and describing its extent and situation. The rights and interests of navigation are of the greatest im portance to our country; therefore, every claim of an individual, which may in any manner trench up. But this private right of soil in the beds of navi. on its freedom, or by which it may be at all affect.gabie rivers, since the positive provisions of mag. ed, should be severely scrutinized, and exhibited in na charta and the adoption of the principles grow. the most unquestionable shape before it is sanctioning out of, or founded upon those provisions, seems ed and sustained by the law of the land. to me either, in fact and truth, not to be a private

Although by the common law of England, all lands, whether dry or covered with water, are held either by or of the king, yet it is laid down as a general rule, that the soil of the beds of all navigable rivers is presumed to be actually vested in and held by the king, until the contrary is expressly shewn; because such soil has not been, or ever was granted out and distributed in like manner as other lands. The king, it is said, has two distinct rights in navigable rivers, the jus privatum, which consists of the right of soil of the bed, to any profits that may be derived from it with some other such rights; and the jus publicum, which con sists in the freedom of fishing, navigation and the like; the first of which the king may alien and may belong to a citizen, but not the latter.

A navigable stream of water is such a one as will, right, or to be one of a most singular and extraor. in its natural state, serve for the transportation ofdinary nature. The Saxon English, it would seem, me and merchandize. In general all rivers, creeks, highly estimated, and were always attentive to the or water courses in which the tide ebbs and flows navigation of their rivers as well as their coasts. may be considered as navigable; but the flux and Their continental conquerors, however, led over reflux of the sea is not conclusive evidence of their from Normandy by the first William, not only in being navigable; for there are many places into troduced feudal despotism, and degraded the nation w.ich the tide flows, that are not navigable rivers, by wantonly compelling it to accept of the admibut creeks within a private estate, Coup. 86. So, nistration of justice in a foreign language, but also o the other hand, rivers beyond tide water are oppressed and materially injured the people in frequently deemed navigable, as the Thames above some of their best and most natural rights, which Kingston, and the Severn above Tewkesbury, Hale were alike beneficial to their conquerors as to themde jur. M. 12-Doug. 444. All navigable rivers are selves. The barbarous Normans not only seized on cosidered as public lighways, so far as respects all the dry land of England, but, ignorant of the im the free passage of persons and property along portance of navigation,they seem to have considered them, in like manner as roads or terreous highways; the rivers as mere fish ponds; and accordingly grant2. Inst. But in other respects no two cases can be ed them out indiscriminately, appropriated them to more distinct. In the latter, if the way be founder- individual purposes, fenced them in, and obstructed

their passage at pleasure. To prevent and remove these evils, introduced chiefly by the Norman kings, magna charta provided in the sixteenth chapter,that "no banks shall be defended from henceforth, but such as were in defence in the time of king Henry our grand-father, by the same places and the same bounds, as they were wont to be in his time" 2 Inst. 30. That is, the navigable rivers should not in future be barred up and treated as mere private property as they too frequently had been. And the 23d chapter of magna charta declares, that, "all wears from henceforth shall be utterly put down by Thames and Medway, and through all England, but only by the sea coasts," 2 Inst. 38. The liberal and just interpretation, that has been given to which, is, that all obstructions in any public navigable river whatever, which, in any manner may affect its uses and benefits, shall be prohibited, abated or removed.

"The civilians tells us truly, nihil præscribitur nisi quod possidetur. The king may prescribe the propriety of the narrow seas, because he may pos sess them by his navies and power; a subject cannot. But a subject may possess a navigable river, or creek or arm of the sea; because these may be within the extent of his possession and acquest." From what is here said it clearly appears, that although the soil covered by the sea as well as that covered by a navigable river is held by the king as his private property, yet that the greater part of it is altogether inalienable; because it cannot be ac. quired and held by an individual. It is therefore an inalienable national domain, because none but a nation can possess and hold such property. This appears to be a principle of the common law, drawn from the pure fountain of natural reason, which from the nature of things could not be violated as regards the open parts of the sea, and large bays, Since magna charta the king cannot grant to any such as the Chesapeake; but which, having been one an exclusive right of fishery; and he, who totally disregarded by the Norman kings and barons, claims such right, must shew it to have originated as far as was in their power, has been affirmed and by grant or prescription as far back as the reign of restored by magna charta, as alike applicable and Henry the second, 2. Blac. Com. 39. And this too reasonable in regard to all navigable rivers as to the in cases where the fishery would seem to be almost sea itself, by those provisions which sanction such as much the production of the soil of the bed of a rights as were previously acquired, and prohibit the river as the grass of a field; as in the case of oysters, erection of those defences, wears, inclosures and clams, and muscles, the exclusive right to dredge fisheries so necessary to designate and preserve for which the king cannot grant since the enact the evidences of a separate and distinct ownership ment of magna charta, 4 T. R. 439; 6 Mod. 73. Nor and holding in any extent of soil covered with a can an individual acquire a right, since magna navigable river. charta, to alter and make a more permanent and But although it is admitted, that no direct and effectual wear, where he had by ancient prescrip- immediate act of ownership can be, or has been tion, a right to erect such a structure for the pur- exercised over the soil of the bed of a navigable poses of fishing, 7 East. 199. The grant of a free river, while the navigation continues, yet it is said, or several fishery, which was always founded on, or that there are certain incidental, consequential, oftener than otherwise coupled with the right of appendant or appurtenant rights and profits which soil of the bed of a river, so essentially affected the owner of such property may have; such as in many instances the necessary facilities of navi- that now set up, to the derelictions of the river, or gation, that it was not allowed by magna charta. to any islands formed by force of its waters; or to This great law it would seem, therefore, should be wrecks floating over its surface. Cases of this sort extended in like manner to the prohibition of all have occurred, no doubt frequently in some of the grants analogous to those of free fishery, so as rivers, and on some parts of the coasts of England. effectually to preserve the rights and interests of The low lands of the Isle of Ely as it is called have navigation according to its true intent and mean- undergone many changes and from its exposure to ing. the whole power of the ocean it is liable to under The king, however, it is said, is the owner of the go many more. There are many rivers in England, soil of the beds of all navigable rivers as well as of as well as the Severn, which are "wild, unruly, and the sea, and also, that he holds the soil covered many times shift their channels," and we are told by all those great waters as his private property. that "sometimes the ocean, especially the narrow But the extent of his power of alienation over this sea lying between England and France, leaves the kind of property is the great question. English shore in a great considerable measures possibly by reason of some superundation on the other eastern shore, or by some other reason we know not." Hale de jure mar. 30. I have met with many cases upon this subject, but not one in which the claim of the individual to the soil covered by navigable water was not evidently traced back by grant or prescription beyond the date of magna charta.

"The king of England, says Ld. Hale, de jure mar. 31, hath the propriety as well as the juris diction of the narrow seas; for he is in a capacity of acquiring the narrow and adjacent sea to his dominion by a kind of possession, which is not com patible to a subject; and accordingly regularly the king hath that propriety in the sea; but a subject hath not nor indeed canot have that propriety in the sea, through a whole tract of it, that the king The king, it is said, may grant fishing within a hath; because without a regular power he cannot creek of the sea, or in some known precinct that possibly possess it. But though a subject cannot hath known bounds, though within the main sea acquire the interests of the narrow seas, yet he may He may also grant that very interest itself, viz. a by usage and prescription acquire an interest in so navigable river that is an arin of the sea, the water much of the sea as he may reasonably possess, viz. and soil thereof And although the sea is a fluid of a districtus maris, a place in the sea between thing, yet the terra, or solum subjectum is fixed; such points, or a particular part contiguous to the and by force of a clear and evident usage a subshore, or of a port or creek or arm of the sea.ject my have the propriety of a privater ver; though These may be possessed by a subject, and prescrib the cquest of the former be more difficult, and ed in post of interest, both of the water, and the requires a very good evidence to make it out, goil itself covered with the water, within such a precinct; for these are maniorable, and inay be entirely possessed by a subject.

The right to make wears is considered proof of the ownership of the soil, Hale doz. M. 20.

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Hale de ju ma. 17. 15. So the shore between high and low water mark may not only belong to a subject in gross, which possibly may suppose a grant before time of memory, but it inay be parcel of a manor. And the evidences to prove this fact are commonly these; constant and usual fetching gra vel and sea-weed, and sea sand between the high water and low-water mark, and licensing others so to do; inclosing and embanking against the sea, and enjoyment of what is so inned; enjoyment of wrecks happening upon the sand; and such like. Hale tie ju. mu. 26, 27. But custom will not entitle the subject to relicted land, or make it part of a msnor. And this is an exception out of that generality, possibly, that terræ, relicte per mare may not be prescribed. But a certain creek, arm of the sea, or districtus maris, may be prescribed in point of interest; and by way of consequence or concomitance, the land relicted there, according to he extent of such a precinct as was so prescribed of such districtus maris. Hale de ju. ma. 31, 32. Therefore the discovery of the extent of the prescription or usage, whether it extend to the soil or not, rests upon such evidences of fact as may justly satisfy the court and jury concerning the interest of the soil. Hale de ju. ma. 33.

Hence it appears, that the title to such portions of soil covered by navigable water, which it is said a subject may hoid, "requires a very good evidence to make it out." And we have seen, that the erec tion of any new wears, and the like strong and decisive evidences of a separate holding are positive. ly prohibited by magna charta; and it is held that the driving of a stake even in the bed of a navigable river would be deemed a pirpresture, and abated accordingly as a nuisance; and it is also held that the passage and use of a river by vessels, like the travelling along a road, is evidence of the right of the public, not merely of the right of way as in the case of a road but of the right of soil in the bed of the river, Anstr 603. In consequence of which it appears that no title to any soil covered by naviga ble water has ever been sustained by any solemn decision which title did not exist prior to the passage of magna clarta.

If the king, says lord Hale, at this day grant partum maris de S. the king having the port in point of interest as well as in point of franchise, it may be doubtful, whether at this day it carries the soil, or only the franchise; because it is not to be taken by implication-But, surely, if it were an ancient grant, and usage had gone along with it, that the grantee heid also the soil, this grant might be et fectual to pass both; for both are included in it." Hale de ju mu. 33. Lord Hale here makes a distinction between an ancient and a modern grant, and gives us to understand that the former would be treated with much more liberality than the latter, and that one of his day, for the soil of the bed of a navigable river, would be effectual if its ex pressions were sufficiently explicit, yet in this teatise of his, which has been said to have exhausted the subject, and to contain every thing to be met with upon it, there is no instance of a grant, since magna charta of land covered with navigable water. Lord Hale seems to speak of it as a thing re markable, that within the bounds of the lands granted by Alan de Percey, to the monks of Whit by abbey, there were many arms or creeks of the sea, as Derwent, Muse, Ese, &c. which lands were give by a subject; but then Percey's charter, a he tells us, was confirmed by king Henry the first, long before magna charta, Hale, de ju, ma. 26.

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In the case of sir Sackville Crow against John

Smith, in the exchequer, the information stated Smith to be a farmer of the lord Barclay, and set forth, that the river Severn was an arm of the sea, flowing and reflowing with salt water, and was part of the ports of Gloucester and Bristol, and that the river had left about 300 acres of ground near Shinbridge; and, therefore, they belonged to the king by his prerogative.

Upon the trial it appeared by unquestionable proof, that the Severn, in the place in question, was an arm of the sea, flowed and reflowed with salt water, was within and part of the ports of Bristol and Gloucester, and that within time of memory these were lands newly gained and inned from the Severn; and, that the very channel of the river did within time of memory run in that very place where the land in question lies; and that the Severn had deserted it, and the channel did then run above a mile towards the west.

On the other side, the defendant claiming under the title of the lord Barclay alledged these matters, whereupon to ground his defence, viz.-1st, That the barons of Barclay were from the time of Henry the second, owners of the great manor of Barclay. 2d. That the river of the Severn usque fum aque was time out of memory parcel of that manor and 3d. That by the constant custom of that country, the filum quæ of the river of Severn, was the common boundary of the manors on either

side of the river.

It appears, that the plaintiff insisted, that the Severn was a public river and could not by prescription be made parcel of a manor, which objec tion the court overruled, and admitted, that although all right to such river is prima facie in the king, yet it may be by prescription and usage, time out of mind, parcel of a manor-whereupon the defendant went to his proofs, and insisted upon very many badges of property or ownership; as, that the lords of the manor had all royal fish; that they had the sole right of salmon fishing, that they had all wrecks, and that they had ancient rocks or fishing places, and wears, or such as were of that nature, within the very channel; that they had at various times and in several ways leased out those rocks, wears, and fishing places; and that by common tradition and reputation, as testified by very many an. cient witnesses, the manors on either side of the Severn were bounded one against another by the filum aquæ. Upon this proof of such ancient title as alleged, the case was abandoned by the plaintiff. fiale, de. ju. mu. 34.

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Good pleading, it is said, is in many cases strong evidence of the law. Now in this case the defendant alleges, "that the barons of Barclay were from the time of Henry the second, owners of the great manor of Barclay, and that the river of the Severn usque filum aqua was time out of memory parcel of that manor"-thereby referring in the most distinct and clear terms to the provisions of magna charta; and then in his proofs, adduced to sustain this allegation, he has recourse to badges of property and ownership, such as the exclusive right of fishery and the erecting wears in the channel of the river, the right to exercise which the king certainly could not grant since magna charta.

But is it clear, that the king can alien any, and every species of property which the law vests in him in fee simple as his private property? If we seek for an answer to this question in the history, as well as in the laws of England, we shall find, that this right of alienatica has been often grossly abused; and that it is by no means so generally acknowledged, or so well established, or so unlimited

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