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Opinion of the Court, per DAVIES, J.

well as unjust, and would make the Constitution of the United States subject one part of a public river to the jurisdiction of a court of the United States, and deny it to another part equally public and but a few yards distant.” “It is evident,” says the chief justice, “that a definition that would at this day limit public rivers in this country to tide water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide.” The jurisdiction is made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide, says the court, in construing the ninth section of the judiciary act of 1789. The rule of the civil law, as already observed, is well defined, of universal recog. nition on the continent of Europe, and, we have clearly seen, better adapted to the state of things on the continent of America than that which arose from the condition of the waters of the island of Great Britain. Bracton, b. 1, ch. 12, $ 6, enunciates that rule in these words :*

Best, J., in Blundell v. Catterall (5 Barn. & Ald., 268), says of this passage from Bracton: "I admit that Bracton agrees with the civil law, and, I must add, with the laws of all civilized nations," and he also says that our books show that this passage has been adopted into our law, and adds: “Surely such a man is no mean anthority for what the common law was at the time he wrote.” But the authority of Bracton, so far as it maintained the right of the public to use the banks of navigable rivers or the shores of the seas, “sicut ipsius fluminis," was overruled and denied in Ball v. Herbert (3 Term R., 261), and in Blundell v. Catterall (supra).

Navigable rivers, in the language of the civil law, are not merely rivers in which the tide flows and reflows, but rivers

* "Publica vero sunt omnia flumina et portus. Ideoque jus piscundi omnibus commune est inportu et influminibus. Riparium etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applicari, funes arboribus ibi natis religari, onus aliquid in iis riponere, cuivis liberum est sicuti in ipsum fluvium navigari; sed proprietas carum est illorum quorum praediis adherunt, et, eadem causa, arbores in eisdem natae eorundum sunt; et haec intelligenda sunt, de Aluminbus perennibus; quia temporalia possunt esse privata."

Opinion of the Court, per DAVIES, J.

capable of being navigated, that is navigable in the common sense of the term. In the words of the Digest, a navigable river is “statio iturve navigio," or, as Lord MANSFIELD observed, "ex facto oritur jus." The Code Napoleon defines, with precision, rivers navigable and those not navigable, and the soil of the former belongs to the nation, and that of the latter, and islands which may be formed therein, to the proprietors of the shore on that side where the island is formed. (Code, SS 559-561.)

We have now ascertained the doctrine of the common law, and that of the civil law, upon the subject now under consideration, and have traced the same to their respective sources. We have seen, in applying the principles of the common law to the waters of this continent, how great has been the embarrassment of courts and judges and text writers; how variant have been the conclusions reached by them, and how contradictory and unsatisfactory have been the reasons for the results arrived at. We cannot fail to see that the doctrine of the civil law, as applicable to the navigable waters of this State, was early adopted by the legislature in the organization of a commission to make grants of land under the waters of the navigable rivers and lakes embraced within its teritory, and the continuous use of this power down to the present time, and in the grants of land under those waters made by the State itself. It is certainly to be regretted that this doctrine, thus solemnly recognized by the legislative authority of the State, and which has received the sanction of some of the most learned and able judges of our country, should have been discredited by our courts, and its applicability to our waters denied. This result was supposed inevitable by the adoption here of the common law, and with it the definition of navigable rivers, as the same was understood and applied in reference to those of the island of Great Britain. It is believed that it has been shown from principle and authority, that such definitions were wholly inappropriate to our physical condition, and to the express policy of the State as indicated by its legislation. We have examined carefully the judicial discussion of this doctrine,

Opinion of the Court, per DAVIES, J.

culminating in the decision by the court of ultimate appeal in this State, repudiating its applicability to the rivers of this State, and establishing the better doctrine of the civil law. It certainly is not too strong an expression to say, that the decision of the Court of Errors in Tibbetts' Case was universally, among judges and the profession, regarded as settling the law, until the

appearance of the decision of the same court in Kempshall's Case in 26 Wend. That I do not place an incorrect estimate upon this decision in 17 Wend., I quote a note of Chancellor KENT (3 Com., 549). He says: “In the case of The Canal Appraisers v. The People (17 Wend., 571), the judgment of the Supreme Court of New York, in 13 Wend., 355, was reversed, and the right of the State over waters above the flow of the sea, for all public purposes in derogation of individual rights, was declared. All rivers in fact navigable, were deemed public rivers, and subservient to public uses.” It is true that the learned commentator considers this case to have been overruled in the subsequent Case of Kempshall in 26 Wend., but for the reasons already given, it is submitted with confidence that this is a misapprehension, and that the latter case might well have been decided without infringing the doctrine of Tibbetts' Case in 17 Wend., on the ground taken in the opinion, that there was evidence of a positive grant, such as would convey the fee of the bed of a navigable river where the tide ebbed and flowed. Such being the fact in that case, it, beyond all dispute, carried the case in favor of Kempshall, and rendered not only wholly unnecessary, but improper, any disturbance of the doctrine as settled and declared in the case in 17 Wend. I am compelled, therefore, to regard the principles there enunciated as the settled law of this State. And I have the less hesitation in so doing, as I believe that doctrine to be sound and impregnable, and in accordance with the expressed will of the legislature, and the early and uniform practice of the State, and the better decisions of the courts of this State, and of other States, and of the United States. The judgment of the Supreme Court should therefore be affirmed.

Judgment affirmed.

Opinion of the Court, per Brown, J.

GEORGE E. GORDON, Plaintiff in Error, v. THE PEOPLE OF THE

STATE OF New York, Defendants in Error.

33 501 127 46

When one accused of the crime of murder is required to account for his where

abouts at a particular time, to avoid the force of criminating circumstances, his omission to produce such evidence is not, in law, conclusive of the facts

in dispute. The absence of an attempt to account for his 'whereabouts, when it appears to

be in the power of the prisoner to do so, is strong presumptive evidence

against him. But the force of such circumstance must be left for the consideration of the jury; and it is error for the court to instruct them that it is of a "conclusive character;" or that, by such omission, doubtful evidence of guilt “ripens into certainty."

William J. Hadley, for the plaintiff in error.

A. J. Parker and S. F. Higgins, for the defendants in

error.

Brown, J. The plaintiff in error. was indicted for the murder of Owen Thompson, and tried and convicted at a Court of Oyer and Terminer held in and for the county of Albany. Several exceptions were taken by the prisoner's counsel in the progress of the trial, but I shall only examine those which were taken to the charge of the court. These present questions of some difficulty, and that they may be more clearly seen and apprehended it will be well to advert to the leading features of the case as disclosed by the testimony.

In September, 1864, there was at West Albany, in the county of Albany, a place called Bull's Head, kept as a tavern and cattle yard, where drovers and persons dealing in cattle were in the habit of congregating. During the afternoon of Thursday, the 15th of September, 1864, the deceased, Owen Thompson, who resided in the city of New York, arrived at the Bull's Head, his ostensible business being to purchase cattle. He remained there the next day (Friday, the 16th), and was seen on the stoop of the tavern or hotel

Opinion of the Court, per BROWN, J.

as late as 20 minutes after 8 o'clock in the evening of the 16th, and was not seen again until the next morning at 7 o'clock, when he was discovered lying in a lonely place in a lane remote from the house, and within a few feet from the gate to cattle yard No. 35, having in the meantime received geveral severe wounds upon the back of his head, causing an extensive fracture around the base of the brain, and his pocket-book, containing a considerable sum of money, abstracted from his pocket on the inside of his vest. He died from these wounds two days afterwards, being unconscious and unable to speak during that time. On Friday morning, the 16th, a young man, a stranger, appeared at the Bull's Head inquiring whether a man had staid there who had driven in cattle from Saratoga county, and representing that he expected eighteen or twenty head of cattle which his uncle was driving in from Saratoga. He applied to the yard keeper to hire a cattle yard. He was offered several, and amongst others yard No. 14. He said it was too large. He finally hired No. 35, which is larger than No. 14 and more remote from the house. The cattle he spoke of did not arrive. He disappeared from the hotel some time during the night of the 16th, and did not return. The last seen of him was in company with the deceased, Owen Thompson, at 20 minutes past 8 o'clock in the evening, upon the stoop of the hotel. This was the last time Thompson was seen before he was found with his skull fractured. This person was seen a number of times in company and in conversation with the deceased during the day, and heard him speak of having a large sum of money upon his person, and saw him several times exhibit his pocket-book with apparently a large sum of money in it. The circumstances rendered it highly probable, and the jury would have been justified in the presumption (and this was the theory of the prosecution), that this man (whoever he was) could be no other than the murderer of Thompson. Eight witnesses were called and examined on the part of the prosecution to establish the identity of the prisoner as the same person who was last seen in company with the deceased at 20 minutes past 8 o'clock in the evening of the 16th of

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