vion, wharfing out, &c., &c., that it becomes private; and then the whole character is changed. Udall v. The Trustees of Brooklyn, 19 Johns. Rep. 175.

To grant the soil, so as to give an individual the right to take it after such a change, has been made a nice question; and it has been stated that a grant to have this effect must be specially formed. Harg. 18; 2 Anst. 604, 609. But why need it be so specially formed, if the king can at once grant so as to vest in an individual the soil, and divested of all common use before the change takes place?

Common of fishery is a right which may be specially pleaded, and cannot be traversed. Richardson v. The Mayor of Orford, 2 H. Black. 182; S. C. 4 Term Rep. 437; Ward v. Creswell, Willes' Rep. 268. A grant of soil cannot destroy the common right of fishery. Chit. Prerog. 142; 2 Bl. Com. 39. The distinction drawn by Blackstone between free and several fisheries is not that the latter requires an ownership of the soil, but an exclusive fishery in a private river, granted by a private person. See Chitty on Fisheries, 243-269. Harg. p. 11, admits a common right of fishery cannot be destroyed.

The grants and pre-emptive rights spoken of in the books are claims by prescription, and grants of prescriptive rights, arising or presumed to have arisen prior to Magna Charta. See also 5 Mod. 73; Siderfin, 148, 149; 16 Vin. Piscary, b. 1; Year Book, 8th ed. 4, 18; 7 East, 195; 1 Inst. Magna Charta, ch. 16, 23.

The grant of the river Thames opposite London, is founded on an ancient prescriptive grant. Shultze, 56. No case can be shown of a grant,since Magna Charta and its confirmation, not founded on an ancient prescriptive right.

The royal fisheries in the river Banne were special royalties, the ancient inheritance of the crown resting upon old charters, collected from the Pipe Rolls; the evidence of which as there adduced, would have been superfluous, if the king has the right and power over the navigable waters here contended for.

The only remaining question to be considered is the effect of

the decisions of Arnold v. Mundy, 1 Halsted, 1; and 1 Penning. Rep. 391.

The first of these cases occupied the whole ground. The suit was brought on a location made under the proprietors with a view to try the right. In the other case the question came up incidentally.

The object of this suit unquestionably was, to review and overturn the decision of Arnold v. Mundy.

There is no pretence for alleging that any question under the Constitution of the United States arose in Mundy v. Arnold. The question was of unwritten local laws, resting on the construction of an ancient charter applicable to real property, and affected by the usages of the State.

The jurisdiction of this Court over cases where citizens of another State than the one in which the suit arises are concerned, rests upon the ground that the federal Courts, in applying the law, will be more free from any undue influence.

But it is State law they are to apply, not to review, alter, or remodel State law.

The jurisdiction of this Court is not controlling or reviewing. It is not, so far as respects the settling of State law, equal. It is subordinate. The federal Courts follow, and do not lead. Their jurisdiction is occasional. Perhaps not one part in ten thousand of the public waters in question are under the jurisdiction of this Court at all.

The members of this Court cannot be expected to be acquainted with all those local usages and opinions which enter into and modify the laws of a State, especially its unwritten law. Hence this Court has decided that the State judiciary is presumed best to know its own law, and is the appropriate organ to expound and settle it. Elmendorf v. Taylor, 10 Wheat. 160; Bell v. Morrison, 1 Peters, 359, 360. Hence this Court follows and changes with the State law. Green v. Neal, 6 Peters, 301.

It is said the decision in Arnold v. Mundy was not carried up and decided in the Court of Appeals. The true point to be as

certained is, whether that decision is State law; whether it has been so far adopted and acted upon as to form a part of its unwritten law.

There are two branches of unwritten law in relation to this subject.

1. Those old and well-established doctrines about which there can be no dispute, and which can never be modified or changed without legislative interference, such as the law of descents.

2. Adjudications upon cases constantly arising, attended with new combinations of circumstances. It is in reference to this second branch, that the rule applies. Under the maxim, stare decisis, these adjudications form part of the unwritten common law. But they may occasionally, when found not to work well, be modified. This flexibility is made to harmonize with the stability resulting from the application of the above maxim. The power of reconsidering and new-modelling adjudications will be exercised with great delicacy and caution. Adjudications once deliberately made, are held as forming part of the settled law; notwithstanding this occasional interference with the rule. An occasional deviation does not impair the character of a fixed rule. When an adjudication is once deliberately made by a Court competent to settle the law, the power of disturbing or remodelling it does not belong to the tribunal of a foreign government.

If such a point came up in the Supreme Court of any other State upon the local law of New Jersey, and it might come up incidentally, such a decision as in Arnold v. Mundy would be implicitly followed. The Courts at Westminster Hall would implicitly follow it. This Court, under the decision of Green v. Neal, would implicitly follow it.

Is the Supreme Court of New Jersey competent to settle law; or must it be carried up to the Court of Appeals? The appeals to that Court are only occasional. There are no reports of their decisions. The decisions of the Supreme Court are all reported by law; and they have, by force of law and usage, the authority of binding precedents in the State when not appealed from.

When cited in other cases, even in the Court of Appeals, they are respected as precedents and as State law; more especially when they have stood for years, and have become the basis of business transactions and of legislative action, as in the present

case.

It is also objected, that there has been but one decision upon this point. One decision fully and thoroughly investigated may be more effective than half a dozen decisions slightly considered. This ought not to be made a question of arithmetic. There are seldom in any case fully discussed more than one decision, because a court will not, unless in a very special case, hear a second argument in the same or in another cause on the same point. It may, in other cases, be incidentally alluded to, but this can add little weight to the force of the decision. If that is wanted, we have it in this case. The doctrine was incidentally passed upon in 1 Penning. Rep. 391. Tide-waters were there held by the Court, and admitted by all the counsel, to be public navigable rivers. The oyster fishery there, was only deemed to be public and common on that account. It has nowhere been decided by this Court, that there must be more than one decision, or a deci sion of the Court of Appeals in those States where they have such Courts, in order to introduce a case into the settled law of the State; such a doctrine, if carried out, would unsettle a vast body of law, and would be productive of infinite mischief in those States where a branch of the legislative body forms an occasional Court of Appeal. Remarks made by the Court in the case before them, must be taken in reference to the circumstances. In a case where the decision was by the State Court of Appeals, it may be said to form a part of the settled law; so where there have been several decisions, as sometimes happens in will cases, they may be said to have the same effect; but it does not follow that one decision may not have the same effect. In 5 Peters, 151, and 6 Peters, 299, this Court followed a single decision of the State Courts. A contrary doctrine would lead to unfortunate conflicts between the State and federal judiciary. If this Court should attempt to

overturn Arnold v. Mundy, it could not be binding upon the State Courts. There would then be only one decision here. And upon the principles already settled in this Court, they would be bound to respect and follow the decision of their own State Court in preference. If this Court should believe that the soil was in the plaintiff below, but there was a common right of fishery, for the reason above stated, the judgment should be in favor of the defendants below.

Mr. Ogden for the defendants in error.

There are two questions in this case: 1st. The extent of the grant of King Charles the Second. 2d. The operation and effect of the surrender in 1702, to Queen Anne.

The question whether the country, now the United States, was acquired by discovery or conquest, is of no moment in this case.

The question what passed to the Duke of York, by the letters patent, properly divides itself into two portions. 1. What was the thing granted. 2. Had the king the power to make the grant as it is construed by the defendants in error.

The grant is of all the lands, soils, rivers, &c., and of all other regalities. "Soil" is the appropriate word to pass land under water. It is not a general term, but an apt and proper one to pass soil under a river; and therefore when used, passed by the king's grant all that is the prerogative right of the king. It is to be holden by the Duke of York and his heirs, in fee-simple, in free and common soccage. Now, suppose the deed stopped here, would there be any doubt of its construction? It then grants the powers of government, civil and military.

By the grant to the Duke of York, King Charles the Second parted with all the premises included within the grant, and also with all his rights of sovereignty or power of government, on condition, and so long as the laws made by the new government were not contrary to the laws of England; reserving only a right of receiving and hearing appeals from provincial judgments and decrees or sentences. He parted with all his prerogative rights