The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24

1.-THE constitution Is hlgHef tnA0 any law
.,nes such so S,ade BY anybody must exercise
= dele ssi authority" dbid SD -,
the pcopIe make .,.,. the. fn Isas
create a legislature to which is delegated
making the ordinary laws"
sI'bis is limited .sby the very TACT of its
being delegated and not an original authority
Cooley + Blackstone, -, note s.
Hence, while the legislature are the people
a ..nmpipote,,t because the people have so
awillcd" vet the legislature, in obedience there
to, thus acting, are limited to what the people
have also wiIled" to be their primary and
supreme law, the constitution. What the people
have directly declared can only be revoked
directly by them and in the same manner when
each man BY himself so declares. not by repre-
sentative. Therefore, when the people speak
and act by representatives they are unrestricted,
except by the United States, and state
law is enacted by the people by
the delegated authority, is subject to
the law the people themselves have enacted
directly in person The less cannot override the
greater. Among other things, the state, that is,
the people, when omnipotent. have said, un-
like other soyereigns. We will not have indi
yidua property damaged, much less taken for
our use, unless the individual is compensated.
But in New jersey and New York and some
other states the people did not so declare. In
the shore or tide lands of nayigable waters,
whether fresh or salt, the sovereign has two
rights: The proprietary right; the sovereign or
governmental right; the Que is in the soil ITSELF
waters each and every being in the state has a
right, an easement at least and so has each
being in the United states; hence, the control of
the state therein Is subject to the regulations OF
congress. This regulation of congress is
stricted to the navigable portion of
the navigabla waters. il is in this
interested. The unnayigable portion is under
the control solely OF the state, and each
state under this control and for itself, has the
power TO determine how it is to be used The
people when acting directly might have also
said, we will exercise our governmental or SOW
ereign interest in the unnavigable portions of the
our interests, without regard to any individual
rights therein. whether or not such declara-
ton would be in violation of the constitution of
the I nited states we do not now dlscuss) But
the people did not so say. On the contrary,
deeming it best for the public good to take such
portions of the waters, and by SO doing making
s'littoral owner an 'inland owner" they also
declared compensation shall first be made to
such owner for the deprivation of the water. As
the state in its direct "omnipotent authority
and capacity did not declare contended for,
the state, by the legislature, the delegated
authority, cannot so declare. The Hoboken
simply holds that the state can divest itself
OF the proprietary right and the governmental
right. Why? Because each state can regulate
this questinn for itself, and the state of New
Jersey, the people, have declared, when di-
rectly acting, that no compensation need be
made, but realizing the injustice, when acting
through the legislature, they avoided the injus-
tice in 1869 by eompensating the riparian owner.
taken proprietary rights together with
the government right, like the people of this
state, did not prevent the people acting by leg
isiature, to enact for compensation, because
nothing in the New Jersey constitution limited
the right OF compensation, whenever they saw
fit. In this state, however, the people acting
directly at the same time when they took both
proprietary and governmental rights, also de-
clared that if said assumption iDterfered with
rights of property i'll upland owner, he should
first be compensated. The people acting di-
rectly can declare what shall be done with both
of these rights, subject to the restriction OF the
United States constitution.
There Is vast difference. however. in the
state omnipotence as regards lands and rights
incident thereto acquired from the United
states direct and lands not thus acquired, as in
New York and New Jersey and West Virginia,
the latter being part of Virginia. The people of
these states did not acquire title from the United
States. We have seen how title in those states
is acquired. New Jersey, Martin VS.. Waddell,
supa. New York, Bedlow VS.. Dry Dock Co.,
pra. as to United States lessee of johnson &
Mcintosh, s Wheat, 5i3.
At the date of independence the theory at least
that the original colonies held title from no
other power or sovereign, that they had always
existed, each state had q separate and distinct
sovereignty, but in the determination of rights
of persons, and rights of things, they were gov
erned by the common law of England as far as
applicable; as sovereigns they adopted the laws
of another country as Louisiana did that of
France, OF the civil system of Jurisprudence;
therefore the laws governing title to land inclu-
ding riparian rights of New Jersey and New
the United States. The latter, after adoption
OF United States constitution, or compact be-
tween the thirteen original sovereigns, being
new, distinct and separate sovereign, not even if
the common law of England, unmodfed by
English statutes, was the rule in the territory
this branch and devote briefly our
attention to the common law OF
England, because il is contended that the
common law of England is the rule to be ap-
piled in determining the rights of littoral owners
OF land acquired from this independent sover-
eign, the United States, for the reason that the
common law OF England, being the rule which
governed New Jersey and New York i'll their
sovereignty and this territory, having adopted
the same rules, therefore we must be governed
by authorities cited from these two states.
Was the common law recognized and in force
in the territory of Washington? If So what was
the common law? that is, the common law of
England, Tor there is no common law of the
United states. Each state has its own common
law, as well as its own local usages and customs.
fCatheart VS.. Robinson, Pet. 264, blk S, L, ed.
l26, and notes. When one refers TO the t'com-
mon law he means the common law of Eng
land" But what constitutes the common law
in the several states OF the Union? What por
ton is in force or adopted recognized? The
common law OF Englandis not to he taken in all
respects by that in force in American states
LCooley's Const. Linn, Note s. ed, p 81; Van
Ness VS.. Pacard, . Pet. 1a7, blk. :, l.. ed, S7l;
Wheaton VS.. Donaldson, Pet, $50, blk. S, L. ed,
1865; Browning We. Browning, Q Pacific G77,
n. NJ the authorities, as well
as the several states, agree as
to the exact date OF its adoption. 1t would be a
material aid, but the authorities differ Chan
cellor Kent and others claim that it was adopted
at the first permanent settlement of the col
onies. Judge Cooley and others "as il stood in
l776, the date of independence" And others
the date fixed BY each colony by its own cir
cumstance. Il Hammonds Blackstone DID, 2S:,
PSI. Note to subject, countries and cases there
in cted.l The materiality of the date as to the
original states is not so important except as the
common or unwritten law is affected or modi-
tied by the English statutes. To get rid of the
confusion, some of the original as we'll as other
states have either by constitutional or statutory
provisions established the date and what con
stituted the common law; Levy vs.. McCartee
New York;, . Pet, 10o; Bk. & L. Ed, ;S54 Scott
Ns. Lunt, adnr. (Nirginia), Pet, 500; Blk. S, l.
Ed, 797 Taylor VS.. Thompson CMaryland) 5
Pet, S5s; Blk. $. l. Ed, l5i (Mich.) Cooley,
Const Linn, 8 Ed. p. 37-l2.l
While each comfy or stale determines for itself
what constitutes the common law, all agree,
first. only that which applicable To their
condition, their need, their situation, was
l.. Ed. los, (Ga.); ? Pet. l37: S Pet. sol; Town
VS.. Clark, Cranch, 292. blk. s. L. Ed. 7S, Will
And, second, that statutes in amendment of the
common law passed by England before emigra-
ton of our ancestors and applicable, part of
the common law. Is Pet, .SS. 1851 The OPEN
ing OF the war of the Revolution is the point OF
time at which the common law became changed,
and that portion which had been adopted in
America flowed on by itself, no longer subject
to changes from across the ocean. but LETT still
to be gradually modified and changed in the
mode OF thought and of business among the peo-
pie, as well as their statutory euactments y .
Which, therefore. they merged from colonial
condition into that of Independence, the
laws which governed them consisted,
first, OF the common law of England
so far as thew had tacitly adopted il as
suited to their condition. Second, 10 the statutes
OF England. Third, to the common
law which they had in like manner adopted
The first and second constitute the
American law, and by this, in great part, arc
rights adludged and wrongs redressed in the