172
The Green Bag
stubborn facts are, that not only that Legis lature of 1827, but subsequent Legislatures as well in 1833, 1845, and 1874, did take the mode of trial by jury from the Act of 9 Anne, c. 20; and did apply that mode of trial to the Supreme Court as well as to Circuit Courts; and that the people ratified and approved the work in and by the jury provisions of the Constitution of 1848 and 1870, and thus placed the work beyond the reach of the improving hand of the Legislature, or of the Supreme Court." . . . Procedure (Virginia). "What Judgment Should Be Entered by the Appellate Court when it Overrules a Demurrer to a Plea?" By C. B. Garnett. 14 Virginia Law Register 836 (Mar.). Discusses a point of Virginia procedure. Procedure. See Illinois. Public Finance. "The Financial System of the Mediaeval Papacy in the Light of Recent Literature." By W. E. Lunt. Quarterly Journal of Economics, v. 23, p. 251 (Feb.). With the prefatory observation that papal finance is deserving of attention, because the papacy not only organized one of the earliest and best of the medieval financial systems, but by means of its operations influenced profoundly the general economic develop ment of Europe, the author reviews the litera ture bearing on the subject and then proceeds to describe the administration created for the management of papal finance and to classify the various revenues of the Holy See. It is a historical article of scholarly value. Public Lands. "Northern Pacific Lands." By D. S. Luckett. Lawyer and Banker, v. 1, p. 91 (Apr.). The author, after reviewing many authori ties, concludes that the joint resolution of Congress in 1870 permitting the mortgage of the Northern Pacific Railroad Company's property and stipulating that lands remain ing unsold and not disposed of after five years should be subject to preemption and settlement on payment of not more than $2.50 per acre, gives settlers on these lands between Portland, Ore., and Tacoma, Wash., a right of purchase at this price, and that the law constitutes the Land Department of the United States the selling agent of the railroad company for this purpose. Real Property (Foreshore Rights). "Ripa rian Rights: A Perversion of Stare Decisis." By Frederic R. Coudert. 9 Columbia Law Re view 217 (Mar.).
Discussing the theory that the jus privatum in the foreshore was owned by the Crown, a doctrine which was invented by one Thomas Digges, an ingenious Crown lawyer in the reign of Elizabeth, and was sanctioned by the Ship Money judges in the reign of Charles I, when what the writer calls the Stuart doc trine of purpresture was put forward, accord ing to which any obstruction of the foreshore was an erection or enclosure on the King's soil and summarily abateable as such. Mr. Coudert considers that a perverted respect for precedent has been responsible for the extent to which this doctrine has been adopted in America. Our courts have pro ceeded upon the theory that it is part of the common law heritage of the United States, in spite of the fact that at the time of the birth of the American nation the ingenious purpresture doctrine had by no means be come a settled part of the common law. In Town of Brookhaven v. Smith (1907) 188 N. Y. 74, this view that the jus privatum theory is part of our jurisprudence, as belong ing to the common law, was repudiated, that case having asserted the principle that the United States adopted only such portions of the common law as were applicable to our circumstances, and consequently never took over a theory so utterly inapplicable to the situation of the colonists as this one of a royal prerogative to the ownership of the foreshore. Thus, says the author, was decided a ques tion which though apparently simple had for years been in dispute. The unsettled condi tion of the law had led to bitter controversies, yet not until March, 1907, did the New York Court of Appeals definitely establish as a rule of property this proposition, and even then only by a vote of four against three judges, namely, that the— "riparian owner whose land is bounded by navigable waters has the right of access thereto from the front of his lot, and such right in cludes the construction of a pier on the land under water, beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the state legislature may pre scribe for the protection of the rights of the public." [In deciding Bardes et al. v. Herman in February of this year (see p. 188 of this issue of the Green Bag), the New York Supreme Court has emphasized anew the principle set forth in Town of Brookhaven v. Smith.—Ed.] Real Property. See Illinois.
