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propriate the fishery in tide waters within their limits, if not appropriated by the legislature." The right in the waters and shores of the sea, and in navigable tide waters in North America, originally belonged to the English crown. That right, to a certain extent, passed to the council, established at Plymouth in England, for the settlement of New England; and so far as it respects Massachusetts and Maine, the same right was transferred to the company which undertook that settlement; and their transfer was confirmed by the charter of Charles II. In that charter (dated May, 1628) “ports, rivers, waters, fishing,” &c. were fully confirmed unto the company; and upon their establishing a government here, they took the dominion of the territory, and all its franchises and privileges, and parceled them out in small divisions. Thus the people of the colony, in their political capacity, succeeded to all the territorial right that formerly belonged to the English crown and government. As the king might grant an exclusive right to a subject, in a fishery, or in the soil under navigable waters; so the colony, succeeding to his property and power, had the same authority to make like grants to individuals, or to corporate bodies. This power, like all other powers of a kindred nature, wested in the legislature of the colony. The ordinance beforementioned made a material change in the law on this subject of public property in tide waters. And that change has continued till the present time. For though the colony charter was annulled in 1684, by a decree in chancery, yet a new charter was granted in 1691, granting to the inhabitants of the province of Massachusetts Bay, and their successors, the territory therein described, and all “havens, ports, rivers, waters,” &c. Indeed, the laws of the colony were not affected, in fact, by the annulling of the charter—whatever might have been the strict legal theory." By statutes, passed in 1692, all the local laws of Massachusetts and of New Plymouth were to remain and continue in full force, in the respective places, until, &c.” As to shores, flats, &c. by the ordinance of 1641, “it is declared that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further”—with a proviso securing the passage of boats or other vessels over the water.” A grant of land, therefore, “below high water mark,” if not otherwise restricted, will extend to low water mark, if that be not more than one hundred rods; and if it be more, the grant will extend to that distance.” So if the grant bound the grantor on a cove or creek, or on the salt water, sea, bay, &c. But the grantee cannot always claim the flats in the direction of the exterior lines of his upland, but only in the direction towards low water mark from the two corners of his upland at high water mark: As in the case of a circular cove, &c." If a grant bound the grantee upon the bank or margin of a stream, the stream itself is excluded." Low water mark would doubtless be the boundary, in such case. When a river is the boundary between two nations, or states, if the original property is in neither, and there is no convention respecting it, each holds to the middle of the

* Coolidge v. Williams, 4 Mass. 140

* See 6 Mass, 438; 3 Amer. Jurist, 115, 241; 2 Hutchinson's History, (3d ed.) 20.

2 Ancient Charters, &c. 213. 229.

* Ancient Charters, &c. 148.

4 Adams v. Frothingham, 3 Mass. 352; Austin v. Carter, 1 Mass 231.

• Rust v. Boston Mill Corporation, 6 Piek. 158. See further, 6 Mass. 332; 10 Mass. 146.

* Hatch v. Dwight, 17 Mass. 298.

river. But when one state is the original proprietor, and grants the territory on one side only, it retains the river in its own domain, and the newly erected state, or the old state to which the cession is made, extends only to the river; and low water mark is the boundary. This is the law in case of fresh streams, as well as in those in which the tide ebbs and flows." So it was held in Handley’s lessee v. Anthony,” on a claim to an island in the Ohio river, as part of the territory of Kentucky—the cession by Wirginia describing the territory as “situate, lying and being to the northwest of the river Ohio.” If this had been a question between private citizens, grantor and grantee, the latter would have held to the centre of the river. In the ordinance for the government of the territory northwest of the river Ohio, passed July 13, 1787, it was declared, that “the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”” Though, in general, the public have only an easement in the land over which a highway or road passes—as in rivers that are actually, though not technically, navigable—yet a grant of land, bounding on a highway or road, seems, in Massachusetts, to be construed to exclude the land used for a way, instead cf extending to the centre." In some other states, a contrary construction is given to such grant.”

* Wattel, Book I, chap. 22. 2 5. Wheat. 374.

* Journals of the old Congress, vol. 12, (Folwell's ed.) p. 62; 3 U. S. Laws, (Story's ed.) 2077; 5 Hammond, 414.

* Alden v. Murdock, 13 Mass. 256; Sibley v. Holden, 10 Pick. 249; Tyler v. Hammond, 11 Pick. 213. See 17 Pick. 104; 21 Pick. 295, 296. * Peck v. Smith, 1 Connect. 103; Chatham v. Brainerd, 11 Connect. 60;


If a deed bound land on a way upon one side, this is construed as a covenant by the grantor that there is such a way; and it is not regarded as mere description.' But a grant bounding land on “a thirty feet street,” is not held to amount to a covenant that the street is of that width throughout. It is considered as description only.” Nor is a grant of land as abutting in the rear upon a street, which was merely laid down as such upon a map, but not actually opened, an implied grant of way in such supposed street, or a covenant to open a way there, the land being accessible by a street in front.” T. M.

Jackson v. Hathaway, 15 Johns. 454; Cortelyou v. Van Brundt, 2 Johns. 357; 3 Kent's Com. Lecture LI.

* Parker v. Smith, 17 Mass. 413.

* Clap v. M'Neil, 4 Mass. 589.

* Case of Mercer Street, 4 Cow. 542.


[Translated from an article by Professor C. J. A. MITTERMAIER, in the New Archives of Criminal Law, volume xii. pp. 1–52.]

§ I. Doctrine of the Roman Law.

AN examination of the doctrine of the legal effect of drunkenness will clearly show, how little we are able to find a basis for each particular principle of the common law, in some general decision; and how carefully we ought to guard against deriving general rules from isolated fragments of the jurists or from imperial rescripts, which refer to and are founded upon particular cases. In like manner, when we examine the doctrines of the legal systems of modern times, in regard to this matter, we shall easily convince ourselves, that very little is gained by the insertion of a

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general principle or two on the subject in a code;—that the doctrine is first derived from the details of the practical administration of justice;—and, that, where the law is defective or inappropriate, a practical remedy is not unfrequently found in bold constructions and distortions. The whole course of the development of the subject will also show, that it would be just as erroneous to lay down the principle, that drunkenness does not relieve from criminal responsibility, as it would be to assert, that the highest degree of drunkenness is always a ground of exemption from responsibility. A nice discrimination between premeditated, intentional, culpable, and inculpable drunkenness, and between the state of body induced by habitual drunkenness, and the appetite for liquor merely, can alone furnish a safe practical guide in the application of the law to particular cases. Of the truth of the assertion, that criminal laws of excessive severity, and which are not in harmony with the sound feeling of the nation, are inexpedient, because they are liable to be circumvented in all possible ways, and, by disproportionately lessening punishments, lead to an injurious extreme, the law of France affords a striking example. The penal code of that country does not mention drunkenness at all; and, from the progress of the development of the French legislation, which will be more closely examined hereafter, it will appear beyond a doubt, that the legislator did not intend that drunkenness should in any case relieve from responsibility or free from punishment. But the reader will be convinced, when the doctrines of the existing French jurisprudence come to be noticed, in § IV, that the French courts have no scruple in acquitting a drunken person, even when guilty of the highest crimes, on the ground that drunkenness is a state of temporary insanity (demence passagère), and that article 6 of the penal code declares generally that insanity is a ground of exculpation.

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