Jacob Radcliff to Alexander Hamilton and
Josiah Ogden Hoffman1
New York, May 1st, 1804.
It being deemed important to obtain an early opinion on some of the points submitted to you, the gent’n associated with me will thank you for an answer, at present to the questions stated on the enclosed paper. The other points concerning the claim of property or Jurisdiction of this state to the land under water require perhaps too much investigation to be immediately disposed of, and are therefore proposed to be deferred. At the same time if you have not definitively formed your opinions on the question of Jurisdiction as first stated, I wish you once more to think of it in that light. On the general question it may be useful to mention that I find by Smith’s History of New Jersey, page 156–7, that the Duke of York, of the 14th March, 1682, made a new grant to the twenty-four proprietors of east Jersey, which is there mentioned in a note to be “more full and express than any that went before.”2 The grant itself is not given but it is stated to be published in A. Learning, and J. Spicer’s grants, concesions &c.3 These books I have not seen and do not know at present where to find them.
I also observe by Smith’s History of New Jersey, page 211, &c., that in 1702 the proprietors of both East and West Jersey surrendered their pretensions to the Govt. of that Country to Queen Anne, and she thereupon appointed Lord Cornbury4 Gov’r and instituted one regular Provincial Govt. over the whole but the extent or boundaries of the province are not defined. About this period too the laws of New Jersey as published in their present code appear to have commenced.5
I also take the liberty to refer you to Vatt. 6, 1 ch. 22s. 269,6 as to the general rule where Countries are divided by navigable rivers, and to Harg. law tracts 22, 36,7 as to the right of navigation which remains in the Public notwithstanding the grant of a river, &c., to a subject. If the position be correct that a right of passage to and from the adjoining territory remains in the public and cannot be granted by the Crown, will it not follow that every thing necessary to the full enjoyment of that right (as by wharfing, &c.,) equally remains? Is not this case the right of navigation in the public, the principal right to which all others must yield?
I have looked at the constitution of the United States and find nothing there that appears to me to deny the power of Congress to make Powles Hook a Port of Entry.
An additional question is stated within as to Dower respecting which I presume you will have no trouble. It is desired to be mentioned merely for the satisfaction of purchasers.
Winfield, Jersey City description begins Charles H. Winfield, A Monograph on the Founding of Jersey City (New York, 1891). description ends , 43–44.
2. Samuel Smith, History of the Colony of Nova-Caesaria, or New Jersey (Burlington, 1765).
3. Aaron Learning and Jacob Spicer, Grants, Concessions, and Original Constitutions of the Province of New Jersey (1664–1682) (Philadelphia, 1752).
4. Edward Hyde, Lord Cornbury, was governor of New York from 1701 to 1708 and governor of New Jersey from 1702 to 1708.
5. Samuel Allinson, ed., Acts of the General Assembly of the Province of New Jersey, 1702–1776 (Burlington, 1776).
6. Emeric de Vattel, Law of Nations, or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760).
7. Francis Hargrave, ed., Collectania Juridica consisting of Tracts Relative to the Law and Constitution of England. 2 vols. (London, 1791–1792).