F 89 .P9 R46 Copy 1 PUBLICATIONS OF THE Public Park Association ^^ L^NDS IN THK Wooiiasquntiicket Yallev. PROVIDENCE : PKOVIDKNCK PRESS COMPANY, PHINTERS, 1884. REPORTS RELATINO TO THE TITLE OF THE STATE CERTAIN LANDS WOONASOUATUCKET VALLEY, AND ESTABLISHING BOUNDARY LINE BETWEEN THE CITY OF PROVIDENCE AND THE TOWN OF NORTH PROVIDENCE. jx iv/v-fu- \i^v'v^ vv-r r.;,, ' ^ <.,/.. PROVIDENCE : PT'BLISHED BY THE PUBLIC rAP.K ASSOCIATION. 1884. PRINTED BY THE PROVIDENCE PRESS COMPANY. REPORT JOINT spp:cial committee on the title of the state to LANDS IN THE WOONASQUATUCKET VALLEY. To tJte HonorabJe the General As.sei)ih/i/, at the May session ^ at JSTea'port, A. D. 1859 ;— The undersigned, appointed a joint special connnittee by the General Assembly, at its January session, 1859, with instructions to report to the present May session of the General Asseml)ly, what ri,o;hts the State may have in the lands embraced in the act establishing the l^oundary line between the city of Providence and the town of Xorth Providence, along a portion of the Woonasqua- tucket river, and to provide for the straightening of 'said river and line ; and also what rights any individuals may have in said lands ; how and in what manner said rights are ailected by said act, and any other facts relating to the right, title, or interest of the State in and to said lands, and any other lands in the Woonasquatucket valley, together with their opinions thereon, respectfully ask leave to make the following partial EEPORT. The members of the conmiittee met in the sheriff's oifice, in Providence, on the 2d day of April, 1859, and organized 1)y the election of Sullivan Ballon, chairman. Subsequently, the com- mittee have had several meetings in th(; Senate chamber, in Prov- idence, at which all persons interested were publicly notified to appear and be heard. In pursuing their investigations, the committee thought their attention should be first directed to the interest and claims of the State; as, if the State had no valid claim or valuable interest in the lands in question, the examination into the respective private rights of the individual owners of the lands, would not only be more properly left to the courts, but would l)e entirely useless to the State. In order to facilitate their examination into the public records, legal authorities, and historical facts, with Avhich the whole question was surrounded, and make it more thorough than it could be made l)y the whole committee, without great labor and expense, a sub-committee, consisting of Jerome B. Kimball, Arthur M. Kimball and Sullivan Ballou, was appointed, to make the necessary investigation. The results of that investigation were afterwards presented to the committee by the Attorney General, in an argu- ment advancing and supporting the claim of the State, to the fee of all lands in the Woonasquatucket valley covered by tidewater; and were answered by James M. Clarke, Esq., City Solicitor of the city of Providence, who appeared for the city, said city being not only a thatch-bed proprietor, but interested in other lands embraced in the terms of the resolution, which were tilled in by the city in the winter of 1857—S, Your committee do not deem it necessary to make a full report upon the title of the State to the lands emljraced in the resolution appointing the committee . Should your honorable body, however, see fit to sanction the conclusions of your committee as hereinafter expressed, they will hereafter present in full their opinions and conclusions thereon, together with the historical and legal author- ities upon which those opinions and conclusions are based. In the early history of our colony, when the grass that grew in the salt marshes was deemed more valuable for agricultural pur- poses than at the present day, it was customary to set off to the purchaser of upland, a small portion of the marsh l)clow high water mark, where the salt grass grew, as his "thatch-right," where he was to have the exclusive right to cut the thatch or salt grass. These thatch-rights, which were originall}' mere easements, and not grants of the soil, have come down to their present owners by purchase and descent, in quitclaim and warranty deeds. Your committee have no hesitation in declaring that, whatever may l)e the equitable rights and claims of the thatch-bed proprie- tors, the State has the legal title to the fee of the land. Accord- ing to the rules of common law, the title to all lands under tide water is in the sovereign, and cannot pass from him without express grant ; and no where in the history of the sovereign power of this State, whether in the General Assembly, Colonial Legisla- ture, or the King, has the sovereign power ever divested itself of its title to land under tide waters. And though some of these thatch-l)eds, even as early as the Colonial times, were conveyed with a warranty of title, yet it seems indisputable to the under- signed, that all the thatch-bed proprietors have ever acquired from the State or the sovereign power, is a prescriptive right to cut the thatch, without any right or claim in the soil. If the thatch is destroyed, and the premises devoted to other uses than the growth of thatch, the prescription is gone, and the title of the State is full and perfect. What equitable considerations, however, should govern the Gen- eral Assembly, in granting the fee in these lands to the thatch-bed proprietors, is a subject worthy of a more careful examination than your committee have hitherto been able to give it. But as near as your committee can noAV form an opinion, there are spaces between the several thatch-beds, where the thatch has never grown, and which do not belong to the thatch-beds proper ; to such land the thatch-bed proprietors cannot make even an equitable claim. But what may be the amount of such land to which the State unques- tionably has a clear title ; what may be the amount of land desired by the thatch-bed proprietors, and what may be the amount of land actually covered with thatch, your committee have not had the time to investigate. This, however, should be done, in order to legislate justly upon the rights of all parties. There is, also, a piece of land covered ])y the tide water, where there are no thatch-beds whatever, that your committee are aware of, to which there is no denial of the title of the State, comprising from 15 to 25 acres, Avhich may become of great value, and which ought to be preserved to the State. There is also another piece of land, comprising a number of acres, that was filled up by the city of Providence, in the winter of 1857-8, in order to give employment to unemployed and destitute laborers. It has never been appropriated to railroad purposes, under the act of 1845, nor is there any claim to it, that your com- mittee are aware of, inconsistent with the title of the State. A thorough investigation into all these questions relative to these lands, would have been made l)y your committee, had there l)een sufficient time ; l)ut the magnitude of the interests involved, and the extent of the inquiry necessary to a clear elucidation of the whole matter, together with the shortness of the time between the January and the May sessions of the General Assembly, have pre- vented your committee making the whole investigation their res- olution of appointment directs. Your committee therefore recommend, that they be directed to continue their labors, with the same powers conferred in their resolution of appointment, and that they l)e directed to have sur- veyed and platted, for their own use and the use of the State, all the lands above the cove and under tide water, to which, in their opinion, the State has a title or claim, and to report at the next January session. They thereform recommend the passage of the followino; resolution : — Besolved, That the joint select committee, appointed at the hist January ses- sion of tlie General Assembly, to whom was referred the "Act to establish the boundary line between the city of Providence and the town of North Provi- dence, along a portion of the Woouasquatucket river, and to provide for the straightening of said river and line," with all the accompanying papers, be con. tinned to the next January session of this General Assembly, with the same instructions and powers given and granted in the resolution appointing said committee, and that they be directed to cause to be surveyed and platted all lands above the cove and below iiigh water mark, to wliich, in their opinion, the State has any legal claim or title, and that they be directed to report to the next January session of this General Assembly. SULLIVAN BALLOU, ^Y. H. S. BAYLEY, GEO. MANCHESTER, WILLIAM A. PIECE, JEKOME B. KIMBALL, . REPORT Of tlte Joint Special Committee appointed by the Hon. Genera} jisHemhlij, at its January Session, A. D. 1859, to take into consideration "^l>i Act to establish the boundari/ line beticeen the city of Proridence and tlte toim of NortJi Providence, along a portion of tlie Woonasquatacket River, and to j)rovide fn- the straightening - settlements. " Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired, being exclusive, no other powder could interpose between them. "In the establishment of these relations, the rights of the oriiji- nal inhabitants were in no instance, entirely disregarded ; but were necessarily, to a considerable extent, impaired. ' They Avere ad- mitted to be the rightful occupants of the soil, with a legal as well as joint claim to retain possession of it, and to use it according to their own discretion ; but their rights to complete sovereignty, as independent nations, were necessarily diminished ; and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those wdio made it. " While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to l)e in themselves ; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil, Avhile yet in pos- session of the natives. These grants have been understood by all, to convey a title to the grantees, sul)ject only to the Indian right of occupancy. " The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.' "Another view has been taken of this question, which deserves to be considered. The title of the crown, whatever it might be,, could be acquired only by a conveyance from the crown. If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still, he could acquire only that 3 18 title. Admitting their power to change their laws or iisnge.s, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still, it is a part of their territory, and is held under them, l)y a title dependent on their laws. " The grant derives its efficacy from their will ; and if they choose to resume it, and make a diflerent disposition of the land, the courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased, holds their title under their pro- tection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceedings. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particu- lar tract of land in severalty." Chief Justice Marshall, after reasoning thus upon the principles of law applicable to Indian titles, proceeds to strengthen the argu- ments on which the opinion of the court is based, by reference to the history of several of the older colonies ; and among others, he thus alludes to Rhode Island : ' '' Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to the gov- ernors of the neighbornig colonies, by the King's command, in which some exin-essions are inserted, indicating the royal appro- bation of titles acquired from the Indians. "The charter to Rhode Island recites: 'That the said John Clark, and others, had transplanted themselves into the midst of the Indian nations, and were seized and possessed, by purchase and consent of the said natives, to their full content, of such lands,' &c. And the letter recites, 'That Thomas Chaffinch and others, having in the right of Major Asperton, a just proprietary in the Narragansett country, in New England, by grants from the native princes of that countr}-, and being desirous to improve it into an English colony,' &c., 'are yet daily disturbed.' " The inii)rcssion this language might make, if viewed apart 19 from the circumstances under which it was employed, will be eliaced^ Avhen considered in connection with those circumstances. "In the year Ifioo, the Plymouth Company surrendered their charter to the crown. About the same time, the religious dissen- sions of Massachusetts, expelled from that colony several societies of individuals ; one of which settled in Rhode Island, on lands pur- chased from the Indians. They were not Avithin the chartered limits of Massachusetts, and the English government was too much occupied at home, to bestow its attention on this subject. There existed no authority to arrest their settlement of the country. If the}^ obtained the Indian title, there were none to assert the title (>f the crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in lands which they cultivated and improved ; a government was estab- lished among themselves ; and no power existed in America which could rightfully interfere with it. "On the restoration of Charles II., this small society hastened to acknowledge his authority, and to solicit his confirmation of their title to the soil, and to jurisdiction over the countr3^ Their solicitations were successful, and a charter was granted to them, containing the recital which has been mentioned. "It is oljvious that this transaction can amount to no acknowl- edgment, that the Indian grant could conve}" a title paramount to that of the crown, or could in itself constitute a complete title. On the contrary, the charter of the crown was considered as indis- pensable to its completion. "It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the sea coast of America ; and when a portion of it was settled, with- out violating the rights of others, by persons professing their loy- alty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious, to expel them from their habitations, because 20 they had obtained the Indian title otherwise than tlii'ough the agency of government. The very grant of a charter is an asser- tion of the title of the crown, and its words convey the same idea. The country granted is said to be 'our island called Rhode Island;' and the charter contains an actual grant of the soil, as well as of the powers of government. " The letter was written within a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neigli- l)ors, who were disposed to claim some authority over them. The King being willing himself to ratify and confirm their title, was, of course, inclined to quiet them in their possession. "The charter and this letter certainl}^ sanction a previous unau- thorized purchase from Indians, under the circumstances attending that particular purchase ; but are far from supporting the general proposition, that a title acquired from the Indians ivould be valid; against a title acquired from the croum, or unthout the confirmation, (ftlte crown. "The acts of the several colonial assemblies, prohibiting pur- chases from the Indians, have also been relied on, as proving that independent of such prohibitions, Indian deeds would be valid. But we think this tact, at most, equivocal. While the existence of such purchases, would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been previousl}'" passed, is strong evidence of the general opinion that such purchases are opposed by the soundest l)rinciples of wisdom and national policy." Judge Washington, iu the case of Worcester vs. the State of (leorgia, thus speaks of the relations between the Indians and the United States -A " At no time has the sovereignty of the country been recognized as existing in the Indians, but they have always been admitted to possess many of the attributes of sovereignty. All the rights which belong to self governmcfnt have been recog- nized as vested in them. Their right of occupany has never been 1. I'oters (U. S. Sup. Ct.) Rt'iiorts, 580. 21 questioned, but the fee of tlie soil has been considered in the gov- ernment. This may be called the right of ultimate domain, but the Indians have the present right of .possession." Such are the decisions and such th(^ -language of the United States courts, upon the suT)ject of the Indian title. To this, it has been replied, that it is sul)versive of one of the principles on which Rhode Island institutions Mere founded, and contrary to the policy that Rhode Island has ever pursued. Roger Williams was indeed a friend of the Indian race, and always a defender of their rights ; and so far as his power and intiuence extended in the formation of this colony, he shielded them from wrong and op})ression from the whites. Before his banish- ment from ^Massachusetts Bav, he maintained, that "an Eno-lish })atent could not invalidate the rights of the native inhabitants. The opinion sounded at first like treason against the cherished charter of the colony. Williams desired only that the offensive manuscript might be burned ; and so effectual 1)^ ex})lained its pur- l)ort, that the court ap})laudcd his temper, and declared that the motives were not so evil as at first they seemed. ^ We have not been a])le to ascertain what the course of argu- ment was in that manuscri})t. But the |)osition that an English patent cannot invalidate the rights of the native inhabitants, is by no means in conflict with the law since laid down by the United States Supreme Court. The Indians undoubtedly had rights in the soil of this country : and it was not only wise and prudent in the early settlers to purchase their title, whatever it might be, but it Avas what law and justice demanded they should do. And l)ecause Roger Williams always generously acknowledged their right of possession, not only by purchasing the tribe lands of the sachems themselves, but in cases where Indians were in actual occu- l)ation of some of those very lands thus purchased of the sachems, by compensating them also for tlicii" removal, he won the love and reverence of the red men, and became the means of preserving the colonies in New England from indiscriminate slaughter and exter- mination. 1. ISaiicroft's llistorv ol" the rnitcd StiUcs, .%<). 22 That Roger Williams claimed that the Indians had any thing- more than a right of occupancy in the soil, from the account of the historian above quoted, may l)c well dou1)ted. It was not the char- acter of the man to retract his principles, once promulgated, or to modif}^ them to suit the Court of Massachusetts Bay ; and if he really denied to the crown those rights of discovery which the laws of nations gave, it does not seem probable he could have explained his views so that the court should have applauded his temper, and have declared that his views were not so evil as at tirst they seemed. Xor that he would afterwards have joined in solicitins^ from the English crow^n the charter, that not only acknowledged and confirmed his very purchases from the Indians, but clearly conveyed the lands themselves. It does not seem inconsistent with his character and his history, to say, that all Roger Williams claimed for the Indians, was, simply a right of possession, w^hich the colonic* themselves, under an English patent, could not extinguish, without the consent of the Indians ; and such a claim certainly was not inconsistent with the common law. Before examining into the Thatch bed titles, (so called), and also what has been the local legislation of the colony and state, affecting the title and soil under tide- water, it may be well to pre- mise, that the result of the establishment of the independence of the colonies, upon the prerogatives and rights of the crown, was to transfer them all to the sovereign power of the state. Our charter and form of government still remsuned the same ; and what- ever y^«'rt regalia, or sovereign power the king held and enjoyed in regard to the colony, passed at once upon the independence of the colony, to the state. Mr. Angell, in his work on Tide Waters, (page 44) says ; "It has ever, to this day, in fact, been considered, that wdien the revo- lution took place, the people of the several original states became themselves sovereign ; and that in that character, they held the ab.solute right to all their tide waters, and the soil under the same, for Iheir own connnsn use." In a memorandum of a deed, by Canonicus and Miantonomo to Roger Williams, in March, 1637, in confirmation of a sale to 23 Williams two years ])efore, and which was the first purchase of the Indians by Williams, the lands are described as " ye lands and meadoes vpon the two fresh rivers called INIooshausick and Wan- asqutucket," bounded " trom ye river and fields at Pautukqut, ye great hill of Notquonckaiuit on yc north-west, and ye town of Marshapague on ye west ; " and in the memoranda afterwards made by Williams himself, and also in his grant to his twelve associates, the lands are spoken of as the lands and meadows on these two fresh rivers. The deed of Williams to his associates gave them, "and such others as the major part of us shall admit into the same fellowship of vote with us, equal right and power of enjoying and disposing of the same grounds and lands." This was the commencement of the proprietors of the Providence Purchase. In those earl}- times, when but little meadow land was reclaimed, when corn stalks and the salt marsh grass were almost the only fodder for cattle, the salt marshes in the Cove and the Woonas- (|uatucket valle}' were considered of great value. To those of the proprietors, therefore, who owned, or subsequently purchased a certain amount of upland, was appropriated or conveyed the right to cut a certain amount of thatch, or salt grass. To those who had only half the standard amount of upland, was allowed half the amount of thatch. These privileges of cutting soon ))ecame known as "thatch rights," and were enjoyed by the proprietors in conunon. In the course of fifty or sixty years, however, it was found necessary to make out and define these rights of common. Prob- ably some of the thatch-right owners would cuttheir thatch sooner than others, and, obtaining more than their proportion, thus deprive the last of any at all ; or, perhaps the thatch, varying in quality, there was strife about claiming the best ; or, perhaps some miffht claim a better right to cut in sonn^, locatities than others. At all events, on the 27th of July, 1704, at a town meet- ing of the town of Providence, the proin-ielors ap})ointed a com- mittee " to consider the l)est method of apportioning the thatch- 24 grass, so that those having rights of common should take only in proportion as they own purchases." In searching among the old original papers, now in the care of the Historical Society, and in what has l)een known as the "Indian Bag," your committee found the following original report to the town meeting of the town of Providence, July 27, 170G : "To THE Town Mutt thk 27 July 170C. " Geat we whose uames here hereuuto subscribed being by the town chosen & appointed to take survej^ of all the common Tliatch Beds belonging to the Town of Providence & to malie such equal division thereof that each proprietor may know ills certain proportion therein. And in order thereunto we have according to the best of our judgment both taken a survey and made division of the same (as will more at large appear by our return-). But we finding such disproportion in the Quality of the beds that an equal quantity would in no respect make an equal division, were therefore forced to act more by our judg- ments than by rule, and so we cannot be certain that the divisions are just, and therefore our opinions are that it may be convenient for the town to continue us impowered in the business until such times as there may be some trial had of our work, or else to appoint some other persons in our stead to make such altera- tion as may be thought needful for the more eftectual accomplishment of an equality in the Division. "And Gents we must beg leave further to inform you that we are also of opinion that there is one thing more which will be very essential to the com. pleating of a full equality in this affair, and tliat is that the town at this meeting do take care that we may be paid for our trouI)le and labor in the above said business which will oblige us who are your friends and neighbors. WILLIAM HOrivINS, JOSEPH JENCKES, Junior, THOMAS OLNEY. Jun., JAMES BROWNE, JAMES OLNEY." In the town meeting records of the same date as this report, we find that it was ordered that "those persons who are chosen and ordered to divide the thatch beds, shall appoint who, and how many, of the proprietors shall be and belong to each particular part of the thatch bed already set out by the said dividers, and the same to commence this year, by the particular companies together, — eacli their part, — and no person to begin to mow until the first Tuesday in September." 25 It was aho voted, at the same meeting, "That the proprietors shall come tog-ether on the 17th of August next, at Turpin's house, and there to be informed, by the dividers, in what part of the tliatch beds each company's part shall be, and where each one's share shall fall to be ; and, also, that they do, at the said house, come together on the IGth day of August next, to give an account to the dividers from whose orii>inal rioht their claim to the thatch l)ed was derived, and how nmch their claim is ; and every share of thatch bed shall be divided out to each particular person who are proprietors, according to their proportion." These arc the only measures known to your committee to have l)een taken by the proprietors, or the town of Providence, in rela- tion to the thatch beds. Undoubtedly, the directions of that town meeting were carried out. The proprietors showed to the dividers under whose original I'ight they claimed, and the dividers, class- ing them in certain divisions, marked the division lines and the l)ounds of their individual ri":hts. There being, therefore, no further occasion for collision or dis- pute in the enjoyment of these rights of common, each continued to occupy and enjoy his apportionment. On the 14th day of May, 1714, some of these divisions appear to liave been recorded. ^ The others, probably, never Avere. There was found, however, a few years since, among the papers of the late Moses Brown, a copy of an old paper, purporting to be a complete list of this partition of the whole of the thatch beds, and to whom made. This paper is said to correspond entirely with these divisions whicli are recorded, and probably, in most instances, agrees with the subsequent conveyances of these rights from indi- viduals, as they stand on the town records.- These thatch rights, in the first instance, were mere easements, appurtenant to the upland purchases ; n'r/hts of common, hckl and enjoyed as such, without any claim of right to the soil. In the same deed of the transfer of the upland, whether it was a warranty 1. Town Meeting Records, Book 1., page 107. 2. Vide Report of City Soli.itor on Thatch Ueds, Dec. 12, liJ.W. "26 or a quitclaim deed, the thatch right was generall}' mentioned as a right of common. After the division in 1707, the rights were gen- erally described, not by metes and bounds, l)nt by the surround- ing thatch-right owners. Then, upon the continued conveyance and subdivision of the original purchases of upland, and when it was no longer possible to continue the subdivision of the thatch rights, from the insignificance of the amount and its depreciation in value, they were separated from the ui)land propriety, to which they were origintdly appurtenant, and conveyed by themselves. Finally, the land itself, which the thatch bed occupied, was con- veyed by warranty deed, and often in these somewhat paradoxi- cal terms, — "a certain lot of land situated in the Cove," &c., "called a thatch right." At what particular periods such changes in the mode and man- ner of the conveyance of these rights occurred, it is impossible for your committee to tell. The records of deeds have been almost the only source of knowledge your committee have possessed ; and a full examination of these would require months of diligent research. Considering that in those early times, the marshes where the thatch grew were almost as valuable as the upland, it seems sur- prising the original proprietors should set off to themselves mere easements or rights to cut the thatch, which they were to enjoy in common, and not lay out and convey the soil itself, if they claimed or believed they held the fee. But, at the outset, they recognized the line of distinction which the common law makes between firm lands and lands covered by tide-waters ; the former became private property, and the title to it from the king, afterwards acquired through the charter of Charles II. and the act of 1682 ; and the latter was not originally conveyed in fee, but occupied by all proprietors in common. Whether they acknowledged the conmion law title of the crown to tide-waters, — that is, a title in fee in the crown, subject to those inherent privileges of the public to the fish- ing, navigation, and enjoyment of the sea and its products, or held that they themselves were a body politic, clothed with sovereign 27 power, and with all its incidents and appurtenances — in either case, they seemed to have declined to convey in fee — to be held in severalty — lands which, under th(> law of England, were held l)y the sovereign power in trust for the public. Recurring to the su]))ect of the title of the crown to lands cov- ered by tide-waters, it is essential to inquire how, and by whom, the title to such lands in this State has been acquired. It was, also, a rule of the common law, that the king can only give by matter of record ; therefore, the king's grants are con- tained in charters or letters patent, under the great seal, which are usually directed or addressed to all the king's subjects;^ and in the construction of a royal grant, it shall not enure to any other intent than that which is precisely expressed in the grant. - The only charter ever emanating immediately from the king to the colonists of Rhode Island, was that of 1663. The charter of 1643, as is well known, was an act of incorpora- tion for the purposes of civil government, granted to the colonists by the Earl of Warwick, who had been constituted, by Parliament, Governor in Chief and Lord High Admiral of all those islands and plantations inhabited or planted by, or belonging to, any of His Majesty's — the King of England's — subjects, within the bounds and upon the coasts of America. It contained no grant of territory, and conferred no j urisdiction over the soil ; but only to govern their plantation in such a manner as to maintain justice and peace, both among themselves and towards all men with whom they should have to do ; and reserving to the Earl the power and authority to dispose of the government as he chose. The charter of 1663 sprung from the king himself. It was not only a grant of full pov/ers of government, but a grant of territory, bounded and described, with " all the islands and banks in the Narragansett Bay, and bordering upon the coast of the tract afore- said, (Fisher's Island, only excepted,) together with all firme lands, soyles, grounds, havens, i)orts, rivers waters, fHshings, mines royall and other mynes, mineralls, precious stones, quarries, woods, 1. V. Greenleaf's Cruise, 37. 2. II. IJIackstone's Conimcntaries, 347. 28 wood gronnds, rock^, slates, and all & singular other commodi- ties, jurisdictions, royalties, privileges, franchises, preheminences, and hereditaments whatsoever, within the said tract, bounds, lands and islands aforesaid, or to them or to any of them belong- ing, or in any wise appertaining." It would be difficult to frame language more comprehensive, or that would more definitely convey all the rights of the crown, whether they were jura picblica ov jura jyrivata. Besides, it must be remembered this grant w^as made to certain persons therein named and appointed, as the Governor and Company of the Eng- lish Colony of Rhode Island and Providence Phmtations in New England, in America, and coming from all the different towns or settlements within the colon}^, and upon their own petition, with perpetual succession, and with power to elect their own rulers, to admit freemen, to make laws, to establish courts and fix their jurisdiction, to impose fines, to inflict punishments, to dispose of all matters that relate to purchases of the Indians, and to make war by sea, and land ; and all this territory and jurisdiction was granted to them and their successors forever, in trust, for the use and benefit of the freemen of said colony, their heirs and assigns. It was not a grant to private persons, and for private purposes only, for them to parcel out the subjects of tlie grant for their own per- sonal advantage, but it was a grant of territory and political power to a regularly appointed and constituted government, to hold the territory and power in trust for the freemen of the colony. It was an instrument upon which was to be founded the institutions of a great political community. Construed in this light, (as certainly it should be,) and without commenting, in detail, upon such words in the charter as "soyles, grounds, havens, ports, rivers, waters, fishings, jurisdictions, roy- alties, privileges, franchises, preheminencies and hereditaments whatsover," it seems clear that all the jura regalia or royal rights belonging to the crown, including the dominion over and property in tide waters, held by the crown as appurtenant to its sovereignty, passed to the governor and company of Rhode Island, their sue- 29 ccssors and assigns, under the charter of 1063, in trust for the public. Lest authority shoukl be wanted to sustain this position, your committee would cite the opinion of the Supreme Judicial Court of Massachusetts, in a recent decision of great vahie and import- ance. It is well known, perhaps, that the title of the Connnonwealth of Massachusetts, to about seventy acres of land below ordinary high water mark, in the back bay, near the city of Boston, became, a few years since, the subject of a suit between the Commonwealth and the towns of Roxbury and West' Roxbury. Chief Justice Shaw gave the decision of tlie court in 1858, affirming tlie title of the Commonwealth to the lands in question, the value of which it is estimated, after l)eing tilled in, v/ill amount to nearly four mil- lions of dollars. In that decision^ the learned Chief Justice said : — "At the time of the settlement of Massachusetts and the other English colonies in America, the only source of title to the vacant and unsettled lands of this portion of the continent, claimed by the crown of England by right of discovery, was a grant from the king. It was not merely the only source of legal title to the soil, but the only source of authority for exercising limited poNVcrs of government in and over the lands thus granted. " The theory universally adopted, acted upon and sanctioned by a long course of judicial decisions of the highest authority, was, that the Indians found ui)on this continent had no legal title to the soil, as that term was understood at the common law and among civilized nations, no fee in the land, ])ut only a temporary right of occupmicy, for which it was, perhaps, equitable to make them some allowance. The fee was considered to be in the sovereign, by whose subjects it was discovered, and in whose name it was taken possession of. Under this rule, this part of North America was claimed and held 1)}^ the king of England. This jurisdiction extended to all tide waters included in said territory, in the same 1. Coinuionwealth of Jliissacliusetts vs. Towns of Uo.xbury and West Uoxbury. 30 manner as that held by the crown within the realm of England, subject to the public use, according to the rules of common law. But, as it was held that the king, by virtue of his prerogative, had authority to create and grant political powers, necessary to the government of these new countries, it was held that, where chart- ers were granted to organized bodies with power of governing the colonies to be settled, like that of Charles I. to the governor and company of Massachusetts, they conveyed the prerogative powers of the crown, and as such, included the arms of the sea and all tide waters, to be held, like those of the crown, in trust for the public. The grantees thereby became invested with the ordinary right of property in lands for cultivation and settlement, and the extraor- dinary right of government, subject only to their allegiance and subordination to the parent government, including herein a power over all sea-shores and tide-waters. i " Instead of resorting anew to the ori^-inal charters, we will state what this court held to be the legal effect of them, in a recent case which was muqh discussed, and was decided after much con- sideration. ^ The court there say : The charter under which the colony was formed and settled — first, that of James I. to the Plym- outh company — and subsequently that of Charles I. in 1628, recit- ing an assignment of part of the territory formerly granted to the Plymouth company, by that company, being ail that part of said territory J described, which afterwards constituted the colony of Massachusetts, to Sir Henry Roswell and his associates, all the lands described and every part and parcel thereof, and all the islands, rivers, &c., with the appurtenances. This charter was not merely a grant of property, but it contained provisions for the establish- ment of a separate government, under the allegiance of the king ; and the government thereby constituted Avas invested with all the civil and political powers necessary to enable it to establish and govern the colony, and to make laws for that purpose, not repug- nant to the laws of England. " We may add here, in explanation, that the charter provided for 1. Chapman vs. Kimball, 9 Connecticut Reports, 40. 2. Commonwealth vs. Alger, 7 Cushiug's Reports, G5, 6G. 31 the organization of the company, by the appointment of a governor, deputy governor, and eighteen assistants, to be chosen by the freemen of the company, after the first appointment made by the charter itself. "The governor, deputy governor, assistants and freemen, were authorized to admit freemen, to elect officers for the ordering, &c., and to mtdvc laws and ordinances for the g-ood and welfare of said company, and for the government and ordering, disposition and management of the said lands and plantation, and the people inha])iting and to inhal)it the same, as to them from time to time, shall be thought meet, SiV., not rt^pugnant to the laws of Eng- land." " Most of the English colonies had a similar origin in the charter of the sovereign, whi(;h granted not only the title to the soil, but the powers of government, and, as incident thereto, the right of the sovereign over the sea-shores, and those poAvers denominated re(jalia. The nature and extent of these grants, both of property and })owers, have been held to be regulated hy the common law of Eno-land, which the Eni>:lisli emiiirants claimed as their birth- right, and brought with them. This introduced and established tlie common law of Eniiland, as rei>ulatina- the relative rights-of the government and people in tliis country to the sea and sea- shores. The effect of this charter Avas, to grant to the govern- ment and company, as a body, the jura regalia, or prerogative rights of the crown, to be held for the colony, as the crown held them for the realm of England, and also the ordinary right of pi'operty in the soil, to be held and granted on the liberal tenure of free and common socage, as private rights in real estate are held at connnon law.' Tlu; same rnle, sul)stantially, was estab- lished in all the colonial governments, the authorities for which, we think, are too numerous and uniform to require citation. " We have considered it settled beyond controversy, that by the common law of England, the right of soil, not only in the sea, the fundas marlfi, was in the king, but also in the sea-shore, the land 1. Martin vs. Waddcll, 10 I'ctiTS (U. S. Sup. Ct.) Ucports, 309. 32 between hjob and low water mark, and that, prima facie, the land of all private proprietors, towards the sea shore, and upon bays, arms of the sea, creeks and coves, where the sea ebbs and flows, is bounded by high water mark ; l)iit it having been intimated at the argmnent that some new views had recently been advanced on this subject in England, we were led to look at the authorities cited. The law in this commonwealth seems to be settled by the case already cited, of Commonwealth vs. Alger. ^ There it is declared that by the common law of England, as it stood long before the settlement of this country, the title to flats was in the king, that it was 60 held by liim, in trust for public uses. This rule, appar- ently so well settled and esta])lished both in England and in this country, seems to us not to have been shaken or doubted in any recent English case, though some bold speculations may have been advanced by ingenious counsel in argument, or by acute essay writers in law periodicals." "Taking this proposition, in connection with the proposition already stated, that the King had full power, in these unsettled parts of his dominions, out of the realm of England, to grant a title to the land for purposes of settlement, and such powers of gov- ernment as might be necessary ; and that a charter was granted, vesting the right of soil in the grantees, with very large powers of government, including all necessary to the control and manage- ment of all public interests, of navigation and fisheries, and of the sea shore and navigable waters, the eflect of this charter was, to grant to the company both the jus privatum and the Jus publicum of the crown ; ilie jus p)rii'atum, or title to the land, to be held in fee, parcelled out to corporations and individuals, to be held in fee, subject to the rules of the common law, as private property : and the jus publicum, or all those rights of the crown in the sea, sea shore, bays and arms of the sea, where the tide ebbs and flows, in trust for public use of all those who should become inhabitants of said territory, and subjects of said government." It now becomes necessary to inquire what has been the course 1. 7 Cusliiiig's Ileports, 65. 33 of legislation in the colony or state, aflecting its title to the soil under public waters. Has the sovereign power of the colony or state, ever asserted its claim to such lands ; has it ever conveyed its title to others, or acknowledged it in any other person or power ? The act of May, 1682, " of certain Indian grants" which has been continued in force to the present day, and now comprises the first part of chapter 147, of the Revised Statutes, has been relied on as a confirmation of the proprietors" })urcliase from the Indians of the lands in controversy. The preaml)le of the act gives the reason for its passage. As the inha])itants of the several towns purchased the lands of the native Indians, before the granting of the charter, so that an order or direction from the Assembly could notice obtained there- in ; and as subsequently to these purchases, in the fifteenth year of the reign of Our Royal Sovereign Lord Charles the Second, of blessed memory, there was a charter granted to His Majesty's col- ony of Rhode Island, dit-., in which was contained many gracious privileges granted to the free inhabitants thereof: and amongst others, full power and authority to direct, rule and order all mat- ters relating to the purchases of lands of the native Indians ; and it being thought necessar}' and convenient, for these reasons, that the lands of the said towns should be confirmed to the inhabitants according to their several rights ; therefore it was enacted, that these lands in the towns mentioned, purchased of the Indians, should, according to these purchases, be allowed of, ratified and confirmed to the pro})rictors of the towns, and to each and every proprietor, to have and to liold all said lands in as full, lawful, large and am])le manner to all intents, constructions and puri)Oses whatsoever, as if said lands had been purchased of the Indians by virtue of any grants or allowance obtained from the General Assembly, after the granting of the charter. • If a clear and perfect title was obtained from the Indians, why was any action of the Assembly necessary ? But the preamble of 1. Laws of Uliode Ishmd, Digest ol' 17-lo, p. -.'O. 34 the act states that fe enti- tled to the territory granted, agreeably to the common law of Enijland ; that is, that their title in the soil extended onlv to hi^'li water mark." The next act of the legislature, to which the attention of your 1. 10 Peters (U. S. Sup. Ct.) Repots, 411. t. Augell ou Tide-waters, 51. 37 committee has been called, is an act found among the state records by the Hon. William R. Staples, and is not found in any printed edition of the laws : and it is remarked by Mr. Angell, who cites it,' that "it does not appear to have ever been repealed." It was passed at the May session of the General Assembly, 1707, and provided that each toicii in the colony now established, or that may hereafter be established, may be, and have hereby granted unto them full poAver and authority to settle such iwm^s, creel's, n'uers, icaters, hrniks, bordering upon the respective toAvnships, as they shall think tit, for the promoting their several towns and townshi})s, by building houses and warehouses, w/icirres, laying out lots, or any other improvements, and as by the body of free- holders and freemen of each town shall see cause for, or the major ])art of them for their most benetit. not prejudicing any particular person in their property, original grants or purchases upon any the aforesaid harbors, coves, creeks, (&c. ; which, we doubt not. will much promote the interest of Her iMajesty, ajid the good of her subjects in said colony : for the promoting of trade and navi- gation." If it was ever duly enacted as a law of the colony, it nnist have been repealed by the Digest of 17(3(i, which provides (Introductory act, p. 4,) "that the said digest and compilation shall l)e con- strued, deemed, and taken to contain the only acts, laws, statutes, and ordinances of this colony, of a general nature and obligation," and at the same tune omits the statute of 1707. above alluded to, which was certainly an act of general nature and obligation. If it never Avas duly enacted it is still evidence of the claim of full power and authority by the state over all the rorp.s-, creek.s, rivers, iratera and hanks within its jurisdiction, by its transfer of such full powers and authority to the several towns. Besides, the purpose of the act is declared to be "for promo- ting of trade and navigation," and in order to advance those great public interests, the colony authorized the towns to take posses- sion of the lands in the coves and creeks, till them up, make lots, 1. Angell on Tide-wattTS, 237. 38 and of course dispose of them, build houses, and make all other kinds of improvements that the towns may think for their benefit and for the promoting of trade and navigation. Surely, if the lands covered by these coves, creeks and harbors, belonged to the proprietors and not to the state, we cannot conceive of a grosser violation of their rights than this act contemplated. The next act of the General Assembl^^ in the order of time, known to your committee, atlecting the subject under considera- tion, is one that is supposed to relate expressly to the occupation and enjojnnent of the thatch beds in the Woonasquatuckct valley. As it may not be readily accessible, and is at the same time worthy of careful consideration, we insert the entire act. It was i)assed at the October Session, A. D. 1804, and is as follows : "An Act relative to the depasturing certain marshes, lying on Wanasquatucket river, in Providence and North Providence. " Whereas the proprietors of the upland and marshes contiguous thereto, lying on both sides of Wanasquatucket river, have repre- sented to this General Assembly that they experience great incon- veniences, and sustain no inconsiderable damage, in consequence of some of said proprietors turning in and depasturing horses and other cattle on their said marsh, befort; the grass of others is mowed (the said marsh not being fenced, and it being very incon- venient to fence the same,) and have besought this Assembly to provide a suitable remedy by law in this behalf. "i?e it fJierefore enacted by the General As,'