of the right of the crown, and the leaving of the river JANUARY 1848. vacant between two States. New Jersey had no island within the twelve miles circle. A passage in Smith's History of New Jersey, it was thought, disclosed some right of New Jersey to an island there called Stuypson's island. The author, in giving an account of a negotiation with the Indians, says: "Also Stuypson's island, near Delaware river. Tom Store claims thirty acres," &c. The island was not found upon the map during the investigation, being searched for in the river, though Smith's language, "near Delaware river," indicated that the distance was not from the land into the river, but from the river into the land. A close examination since, has shown that it is what may be called an "inland island," formed by small streams, with, perhaps, the river on one side, but above the low water mark, and within the outline of the land, as "Bombay Hook," is on the other. It is far below the twelve miles circle, and is undoubtedly a part of New Jersey, by her original right; but not an island in the river or bay. The Arbitrator, Mr. Sergeant's opinion, January 15th 1848. Stuypson's is outside. Also Egg island. Something was also said about Egg island, but no evidence given. From the map it appears to be a very small island, low down in the bay, out of the circle, lying near the main land of New Jersey. Whether it is separated from the main, or adjoins it, by whom it is held, if by any body, and under what Has New Jersey tenure, there is no proof in the case. New Jersey, island from Deor those claiming under her, had no island within the twelve miles. As to the Pea Patch island, New Jersey had at no ever acquired the laware. Mr. Sergeant's opinion, January has had posses JANUARY 1848. time possession, and cannot be said to have set up a right to it. The contrary is quite clear. The right The Arbitrator, asserted was that of the West New Jersey proprietaries, which, as has been seen, was adverse to the 15th 1848. State, and could not in any way enure to her use. So of the right of Dr. Gale and those deriving from New Jersey never him. And when, at last, it came to be doubted sion of Pea Patch. whether the proprietaries had any right at all, and when the United States were in actual possession, and New Jersey was asked for an act, that act did not assert any title, but only released her right and interest, whatever it might be. Delaware, on the other hand, was in possession, as far as a State could ever acquired the be. There is satisfactory evidence as to one indivilaware? dual residing on the island after the United States entered upon it; that he was assessed and voted in Red Lion Hundred. Nor asserted title to it. Has New Jersey island from De No evidence of ex So much for the islands. Now as to the jurisdicercise of juris- tion. There is no evidence to establish a single diction by New instance of its exercise by New Jersey over that part river in the cir- of the river and islands, and there is no reason to cle. believe that there was one. One witness was called, to show that process from New Jersey had been once served upon the Pea Patch island, in recent times; but it failed entirely. There was no process; there was no arrest, and all that was made out was that a constable from Salem county came with a pistol, and went away without a prisoner. The ejectment in the Circuit Court of the United States for the New Jersey District, is of no weight. It was brought by an individual, of his own authority; it was after this controversy had begun, and for the purpose of determining this controversy. The Arbitrator, Mr. Sergeant's opinion, January 15th 1848. On the part of Delaware, the evidence is full and JANUARY 1848. complete of the exercise of jurisdiction over that part of the river and islands, as far back as evidence can be expected to go. The process of her courts, and of the courts of the United States sitting in that district, for the arrest of persons and property afloat, has been issued and executed, and continues so to be, quite over to the low water mark on the Jersey side; and this, not occasionally, but habitually, without doubt or question, as a matter of course, whenever applied for. Such arrests have been made of persons and property escaping from above. The cases have been contested upon every ground that ingenuity Clear evidence of could suggest, or the zeal of parties prompt; but diction by Delathere never has been an instance of any one disputing circle. the jurisdiction in the courts either of the State or of the Union. This must be admitted to be very persuasive evidence. In the absence of proof to the contrary, it must be deemed conclusive. Now, this evidence comes from numerous witnesses, of great intelligence and unquestionable credit, well informed upon the subject they speak of, by their pursuits in life, and it coincides (for it did not require support or corroboration) with the proof of particular instances, both by parol and exemplifications of records here produced. The exhibition of the evidence at large, or even a considerable part of it, would be tedious and unnecessary. The whole was carefully reduced to writing, and will be preserved.* *NOTE BY THE REPORTER: This, with the other evidence and proceedings in the case, all which were recorded by the Secretary of the Reference, was transmitted by the Arbitrator, after making his award, to the office of the Solicitor of the Treasury of the United States. A call was subsequently made by the Senate for these papers. Having been transmitted to that body and read there, they were ordered to be printed, and will be found among the Senate Documents (Executive, No. 21.) of the first session of the 30th Congress. exercise of juris ware over the JANUARY 1948. But it is quite impossible to look at the list of witnesses without feeling unbounded confidence that, from their own experience, and from the traditions and other sources of information of the past, which Mr. Sergeant's lawyers and judges are obliged to explore, and to opinion, January follow as their guide, we have the whole knowledge The Arbitrator, 15th 1848. exercise of ju laware over the circle. of what has been held and done from an early, perhaps the earliest, period, concentrated and condensed in this body of testimony. With nothing to contradict it, (and there is nothing,) one might safely say, such has always been the law of Delaware. Kensey Johns, Esq. for example, above eighty-eight years of age, states "that he has resided in New Castle since 1780, now sixty-seven years. He was a Clear evidence of practising lawyer for twelve years, afterwards Chief risdiction by De- Justice of the Supreme Court for thirty-eight years, afterwards Chancellor of the State, since that time, and at present, living a private gentleman." Any one else, speaking of him, would add, and during the whole of this lengthened period, exercising a most wholesome influence by example and precept, upon the minds and morals of the community he lived in. He says "it has always been considered and held by the courts, publick officers and lawyers of Delaware, as far as my memory reaches, that the title and jurisdiction of the State of Delaware, extended to a circle of twelve miles around New Castle, to low water mark on the New Jersey shore. I have never heard the title and jurisdiction of the State of Delaware, over that part of the river Delaware, doubted by any court, publick officer or lawyer in Delaware, on any occasion whatever. Within my knowledge and remembrance, writs have been often issued out of the Mr. Sergeant's 15th 1848. courts of Delaware, to seize vessels and persons in all JANUARY 1848. parts of the river Delaware, within the circle to low water mark on the New Jersey shore, and no dispute, question, or plea was ever made or suggested, within my memory, before any court in Delaware, against The Arbitrator, the title of Delaware over all such parts." And," opinion, January again, "the State of Delaware, for the whole period of my remembrance, and as far back as my researches extend, has claimed and exercised jurisdiction over the Delaware river and soil thereof, within the circle, to low water mark on the Jersey shore, and the State has never failed to exercise this jurisdiction when called upon or asked to do so." Eleven other witnesses, eminent citizens of Delaware, with large means of knowledge, whose names, if repeated, would command respect for their testimony, make similar statements, and some of them give an account of particular cases of arrest and seizure, known to them personally. John Steele, also, a citizen of Pennsylvania, gives an account of his following a vessel down the river, getting process against her from a court in Delaware, and having it executed far over on the east side of the river. New Jersey, as before stated, never objected to the claim of Delaware, nor, as far as appears, set up any claim of her own. In 1709 the boundaries of counties were fixed by an act of the Legislature. Those on the Delaware were bounded on the west by the river, the lines running along the river shore, and not into the river. In 1822, it is true, an act was passed to extend one or more of the lower counties into the river. But this was after the United States had obtained the cession from Dela Clear evidence of risdiction by Decircle. exercise of ju laware over the |