complain that guilty men escape the penalty for their crimes by the law's delays or through the verdict of incompetent, dishonest or corrupt jurors, and punishment by Lynch Law will be rarely inflicted.

Trial by jury was the glory of the common law of England. In times of oppression it served as a bulwark against the assaults of the Crown and the servility of judges. The right is dear to the American people, who have incorporated it both into the Federal and their State constitutions. They have valued trial by jury for the principle of fairness on which it is founded, its independence, and its sturdiness in protecting innocence and punishing crime. Upon the trial courts and the people themselves depends whether it shall be rescued from the partial discredit into which it has fallen. May it be restored in its dignity and purity and in the confidence of the public! May it be cherished in the future to the extent that it has been in the past for its principle of unanimity; its pure and impartial administration of justice; for its preservation of the peace and welfare of society; and as the palladium of civil and political liberty!

PAPER

READ BY

JOHN B. DONOVAN.

AQUATIC RIGHTS.

Mr. President and Gentlemen of the Virginia State Bar Asso

ciation:

We have met on a historic arm of the sea, the principal gateway of Virginia to the ocean, the common highway of all nations. In the offing, where storms rage and the winds their vigils keep, the waters rise up in their dignity and grandeur, despising the power of man, and kiss the skies. What are your direct personal rights and interests, individually, in these waters and in the soil covered by them, what are mine, and what are to be those of our posterity? Though the discussion of this subject will require me to take you-many of whom I have heard not inaptly denominated dry-land lawyers-into deep water, and will, I fear, prove dull and uninteresting, surely it cannot be considered dry. The question is of vast interest and importance throughout the State, and particularly in this section, as it has been estimated by one high in authority that there are more than a million of acres covered by the tidal waters within the territorial limits of this Commonwealth, which are capable of producing, not only such fabulous wealth as would bring a blush to the cheek of Cræsus, but millions of annual revenue.

In 1873, the Legislature of Virginia passed an act, to be found in Section 1, Chapter CI of the Code of 1873, by which it is declared, "All the beds of the bays, rivers and creeks, and the shores of the sea,

within the jurisdiction of this Commonwealth, and not conveyed by special grant or compact according to law, shall continue and remain the property of the Commonwealth of Virginia." Subsequent sections of this chapter show, that by the word "property," absolute property was manifestly intended. The same language is used in subsequent enactments, but this is the first time this claim was solemnly asserted. When and how did such rights

accrue?

According to the civil law, the waters of the sea, rivers and ports, and the shores thereof, are subject to be used in common, every person being equally entitled to the benefit to be derived. from fishing, drawing and drying nets, and navigation. They were denominated by the Roman jurists as res communes, and considered as res omnium, in respect to their use and benefit, but in respect to property as res nullius. By the common law, the waters of the sea, and the shores thereof, are as much subject to the public use as they are by the civil law. The policy of the common law is to assign to everything capable of occupancy and susceptible of ownership, a legal and definite proprietor, and accordingly makes those things, which from their nature cannot be exclusively occupied and enjoyed, the property of the sovereign. Her Majesty, in England, is regarded as the universal occupant, and the presumption is that the property was originally in the Crown. Hence it is said that all lands are holden, mediately or immediately from the Crown. To the ruling monarch is, therefore, not only assigned the sovereign dominion of the sea adjoining the coasts, and over the arms of the sea, but is also vested the right of property in the soil thereof. But, though the dominion over, and the right of property in the tidal waters are in the Crown, yet they are of common right, public (as by the. civil law) for every subject to navigate upon and fish in, without interruption, with the exception only of royal fish (whales and sturgeons), the right to which is founded upon the consideration of the guardianship and protection of the sea against pirates. The maxim was, "The King has the property, but the people have the use necessary." The rights of use are considered to emanate from the sovereign to the subjects, who, by virtue of their subjection, become entitled to the free and uninterrupted en

joyment of the inherent privileges of navigation and fishery, which are classed among those public rights denominated jura publica or jura communa and are thus contradistinguished from jura corona, or the private rights of the Crown. The right of property in tide-waters, and in the soil and shores thereof, is vested in the King as the representative of the public to such an extent, that to the rights of navigation and fishery, he has no other claim than such as he has as protector, guardian or trustee of the common and public rights. Hence since Magna Charta, he has had no authority to obstruct navigation, or to grant an exclusive right of fishing in an arm of the sea. As one of the modern judges of the King's Bench (Mr. J. Bayley) says in the celebrated case of Blundell v. Cutterull, 5 B. & Ald. R. 94: "Many of the King's rights are to a certain extent for the benefit of his subjects, and that is the case as to the sea, in which all his subjects have the right of navigation and of fishing, and the King can make no modern grants in derogation of those rights. So far as the use of tidewaters is necessary for these purposes, the public are invested with rights which are as clearly established as those of the Crown, and its private right is burdened with a trust or charge in favor of the public." To this effect are all the writers on the subject. Lord Hale, de jure Maris; Angell on the Law of Tide-waters, Chap. I; Gould on Waters, Chap. II.

The Revolution of 1776 severed the vinculum which bound the colonies to the Crown. The citizens of Virginia retained all the rights to which they had been entitled as British subjects, and among them the right of free fishery in the public waters—a right which they had not only enjoyed in common, but a right enjoyed by each one as an individual. This right was valuable, and had long been recognized as property, for a man might grant to another a right to fish in his private waters, either exclusively or in common with others. Attracted by the advantages of navigation and fishery accorded British subjects, a denser population had settled on the tidal waters than in the interior. The only change wrought by the Revolution was that the legal title was transferred from the Crown to the Commonwealth, which assumed the protectorate lately vested in the Crown. The Commonwealth became a trustee in the stead of the King, and held, as trustee,

subject to the same individual rights of the citizens which they had enjoyed as British subjects.

The rights of the people in the public waters were considered in the courts at an early day thereafter. In one of the first cases, the Chief Justice of New Jersey said: "Upon the Revolution all these rights became vested in the people of New Jersey as sovereign of the country, and are now in their hands, and the Legislature may regulate, etc. But the power which may be exercised by the sovereignty of the State is nothing more than what is called the jus regium-the right of regulating, improving and securing the same for the benefit of every individual citizen. The sovereign power itself, therefore, cannot consistently with the principles of the law of nature, and the constitution of a wellordered society, make a direct and absolute grant of the waters of the State, divesting all the citizens of a common right. It would be a grievance which never could be long borne by a free people." Arnold v. Mundy, 1 Halstead's R. 1.

I.

This decision was approved by the Supreme Court of the United States in a celebrated case. Charles II granted to his brother, the Duke of York, all the territory within the present State of New Jersey, together with all the lands, islands, soils, rivers, fishings, royalties, etc. Subsequently, the Duke conveyed all his interest in East New Jersey, including royalties and powers of government, to twenty-four proprietors, and these proprietors afterwards surrendered their powers of government to Queen Anne, retaining their rights of private property. In 1834, the proprietors had a portion of Raritan Bay surveyed, claiming it as a portion of their private property which they had retained, and conveyed it to one Waddell, who brought ejectment for its recovery. It was held by the Supreme Court of the United States. that the charter to the Duke of York was to him in a sovereign, and not in his individual, character, for the purpose of founding a colony and establishing a government to be modeled after that of England, in which the Duke was to stand in the place of the King, and that the people over whom he was to rule were subjects of Great Britain, and to be governed according to its usages and laws; that when the Duke transferred all his powers and interest in East New Jersey to the proprietors, they took the bays