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lice, within their territorial limits, the United States permit to be which is not forbidden by the con- carried on. stitution of the United States, even The grant to congress, to regu. although such legislation may in- late commerce on the navigable directly and remotely affect com- waters belonging to the several merce, provided it do not interfere states, render those waters the with the regulations of congress public property of the United upon the same subject-such are States, for all the purposes of nainspection, quarantine, and health vigation and of commercial interlaws, laws regulating the internal course, subject only to congrescommerce of the state, laws es- sional regulation. But this grant tablishing and regulating turnpike contains no cession, either express roads, ferries, canals, and the like. or implied, of territory, or of pub
In the case of Gibbon, vs. Og- lic or private property. The just den, 9 Wheat. which we consider privatum which a state has in the as full authority for the principles soil covered by its waters, the proabove stated, it is said, “ that no ducts of that soil or waters, is todirect power over these objects is tally distinct from the jus publicum granted to congress, and, conse- with which it is closed. The forquently, they remain subject to mer, such as fisheries of all destate legislation. If the legisla- scriptions, remains common to all tive power of the union can reach the citizens of the state to which them, it must be for national pur- it belongs, to be used by them ac. poses; it must be when the power cording to their necessities, or acis expressly given for a specified cording to the laws which regulate purpose, or is clearly incident to their use. “Over these," says some power which is expressly Vattel, book 1, chap. 20, sec. 235,
246, “ sovereignty gives a right to But if the power which congress the nation to make laws regulating possesses to regulate commerce the manner in which the common does not interfere with that of the goods are to be used.” “ He may state to regulate its internal trade, make such regulations respecting although the latter may remotely af- hunting and fishing, as to seasons, fect internal commerce, except as he may think proper, prohibiting where the laws of the state may the use of certain nets, and other conflict with those of the general destructive methods.” J. c. sec. government, much less can that 248. The jus publicum consists power impair the right of the state in the right of all persons to use governments to legislate, in such the navigable waters of the state manner as in their wisdom may for commerce, trade, and interseern best, over the public property course, subject, by the constitution of the state, and to regulate the of the United States, to the excluuse of the same, where such regu- sive regulation of congress. lations do not interfere with the free If, then, the fisheries and oysternavigation of the waters of the beds within the territorial limits of state, for purposes of commercial a state, are the common property intercourse, nor with the trade of the citizens of that state, and within the state which the laws of were not ccded to the United
States, by the power granted to state inspection laws, but internal congress to regulate commerce, it restraints upon the buying and sellis difficult to perceive how a law ing of certain articles of trade? of the state, regulating the use of And yet, the chief justice, speakthis common property, under such ing of those laws, 6 Wheat. 203, penalties and forfeitures, as the observes, that “ their object is to state legislature may think proper improve the quality of articles proto prescribe, can be said to inter- duced by the labor of a country, to fere with the power so granted. fit them for exportation; or, it The act under consideration, for- may be, for domestic use. They bids the taking of oysters by any act upon the subject before it beperson, whether citizens or not, at comes an article of foreign comunseasonable times, and with de- merce, or of commerce among the structive instruments : for breaches states, and prepare it for that pur. of, the law prescribes penalties in pose." Is not this precisely the some cases, and forfeitures in nature of those laws which preothers. But the free use of the scribe the season when, and the waters of the state, for purposes manner in which, the taking of oysof navigation and commercial in- ters is permitted ? Paving stones, tercourse, is interdicted to no per- sand, and many other things, are as sons; nor is the slightest restraint clearly articles of trade as oysters imposed upon any to buy and sell, but can it be contended that the or in any manner to trade within laws of a state, which treat as tort the limits of the state.
feasors those who shall take them It was insisted by the plaintiff's away without the permission of the counsel, that as oysters constitute owner of them, are commercial an article of trade, a law which regulations ? abridges the right of the citizens of We deem it superfluous to pur. other states to take them, except sue this subject further, and close in particular vessels, amounts to a, it by stating our opinion to be, that regulation of the external com- no part of the act under considemerce of the state. But it is a ration amounts to a regulation of manifest mistake, to denominate commerce, within the meaning of that a commercial regulation, the 8th section of the 1st article which merely regulates the use of of the constitution. the common property of the citi- 2. The next question is, whezens of the state, by forbidding it ther this act infringes that section to be taken at improper seasons, of the constitution which declares or with destructive instruments. that the citizens of each state shall The law does not inhibit the buy- be entitled to all privileges and iming and selling of oysters after munities of citizens in the several they are lawfully gathered, and states ? have become articles of trade ; but The inquiry is, what are the priit forbids the removal of them from vileges and immunities of citizens the beds in which they grow, (in in the several states? We feel no which situation they cannot be hesitation in confining these exconsidered as articles of trade,) pressions to those privileges and unless under the regulations which immunities which are, in their nathe law prescribes. What are the ture, fundamental.which belong, of right, to the citizens of all free the expression of the preamble of governments, and which have, at the corresponding provision in the all times, been enjoyed by the citi- old articles of the confederation, zens of the several states which “the better to secure and perpetuate compose this union, from the pe- mutual friendship and intercourse riod of their becoming free, inde- among the people of the different pendent and sovereign. What these states of the union." fundamental privileges are, it would But we cannot accede to the perhaps be more tedious than diffi- proposition which was insisted upon cult to enumerate. They may, by the counsel, that, under this prohowever, be all comprehended un- vision of the constitution, the citider the following general heads zens of the several states are entiprotection by the government, the tled to participate in all the rights enjoyment of life and liberty, with which belong exclusively to the the right to acquire and possess citizens of any particular state, property of every kind, and to pur- merely upon the ground that they sue and obtain happiness and safe are enjoyed by those citizens. ty, subject, nevertheless, to such Much less, that, in regulating the restraints as the government may use of the common property of justly prescribe for the general good the citizens of such state, the legisof the whole. The right of a citi- lature is bound to extend to the zen of one state to pass through, or citizens of all the other states the to reside in any other state, for same advantages as are secured to purposes of trade, agriculture, pro- their own citizens. fessional pursuits or otherwise-to A several fishery, either as the claim the benefit of the writ of ha- right to it respects running fish, or beas corpus—to institute and main- such as are stationary, such as oytain actions of any kind in the sters, clams and the like, is as much courts of the state--to take, hold the property of the individual to and dispose of property, either real whom it belongs as dry land or or personal—and an exemption land covered by water, and is equalfrom higher taxes or impositions ly protected by the laws of the state than are paid by the other citizens against the aggressions of others, of the state, may be mentioned as whether citizens or strangers. When some of the particular privileges these private rights do not exist, to and immunities of citizens which the exclusion of the common right, are already embraced by the gene- that of fishing belongs to all the ral description of privileges deemed citizens or subjects of the stateto be fundamental ;-to which may it is the property of all, to be enbe added elective franchise, as re- joyed by them in subordination to gulated and established by the laws the laws which regulate its use. or constitution of the state in which They may be considered as tenants, it is to be exercised. These, and in common, of this property, and many others which might be men- they are so exclusively entitled to tioned, are, strictly speaking, pri- the use of it, that it cannot be envileges and immunities ; and the joyed by others without the tacit enjoyment of them, by the citizens consent or the express permission of each state, in every other state, of the sovereign who has the power vas manifestly calculated, (to use to regulate its use.
This power in the legislature of construe the grant of privileges New-Jersey, to exclude the citizens and immunities of citizens, as of the other states from a partici- amounting to a grant of a cotenanpation in the right of taking oysters cy in the common property of the within the waters of that state, was state, to the citizens of all the other denied by the plaintiff's counsel, states. Such a construction would, upon principles of public law, in- in many instances, be productive of dependent of the provision of the the most serious public inconveconstitution which we are consider- nience and injury, particularly in ing, upon the ground that they are regard to those kinds of fish, which, incapable of being appropriated by being exposed to too general until they are caught. This argu- use, may be exhausted. The oyster ment is unsupported, we think, by beds belonging to a state, may be authority. Rutherforth, B. I. c. 5. abundantly sufficient for the use of s. 4 and 5, who quotes Grotius as the citizens of that state, but might his authority, lays it down, that al- be totally exhausted and destroyed, though wild beasts, birds and fishes, if the legislature could not so rewhich have not been caught, have gulate the use of them, as to exnever, in fact, been appropriated, clude the citizens of the other states so as to separate them from the from taking them, except under common stock, to which all men such limitations and restrictions as are equally entitled; yet, where the the laws may prescribe. exclusive right in the water and 3d. It is lastly objected, that this soil which a person has occasion to act violates that part of the constiuse in taking them, is vested in tution, which extends the judicial others, no other person can claim power of the United States to all the liberty of hunting, fishing, or cases of admiralty and maritime fowling, on land or waters which are jurisdiction. The taking of oysters so appropriated. “The sovereign," out of season, and with destructive says Grotius, b. 2. c. 2. s. 5, " who instruments, such as dredges, is said has dominion over the land or to be an offence against the ancient waters, in which the fish are, may ordinances and statutes of the adprohibit foreigners, [by which ex- miralty, and that it is punished by pression we understand him to the admiralty as a misdemeanor. mean others than subjects or citi. The authority relied upon to estabzens of the state,] from taking lish this doctrine, is one of sir L. them.”
Jenkins' charges, to be found in the That this exclusive right of ta- 2d vol. of Brown's C. and A. Law, king oysters in the waters of New- p. 475. Jersey, has never been ceded by The amount of the argument is, that state, in express terms, to the that some offences of this kind, are United States, is admitted by the cases of admiralty and maritime counsel for the plaintiffs—and ha- jurisdiction. The laws of a state ving shown, as we think we have, upon the same subject, vesting in that this right is a right of property, the same tribunals jurisdiction over vested either in certain individuals them, are repugnant to this grant or in the state, for the use of the of jurisdiction to the judiciary of citizens thereof, it would, in our the United States. opinion, be going quite too far, to This argument, we think, can
not be maintained. For, although in the states, respectively, at the the various misdemeanors, enume- time when the present constitution rated by sir L. Jenkins in his char was adopted, and that it was not ges, may have been considered as surrendered to the United States admiralty offences at that period, by the mere grant of admiralty and either under the common law or maritime jurisdiction to the judicial the ancient ordinances and statutes branch of the government. Indeed, of the admiralty, it remains yet to this power in the states, to regulate be shown, that they became such, their fisheries in navigable rivers and were cognizable by the judicia- and waters, was not, in direct terms, ry of the United States, indepen- questioned by the plaintiff's coundent of some act of the national sel, and yet their argument upon legislature to render them so. Many this point, when followed out to its of those offences are already incor- necessary consequences, amounts porated into the criminal code of to a denial of that power. the United States; and no person, As to the ancient criminal jurisit is presumed, will question the diction of the admiralty, in cases of power of congress, by further legis- misdemeanors, generally commitlation, to include many other offen- ted on sea or on waters out of ces, to which the jurisdiction of the the body of any country, we have admiralty in England extended at very respectable authority for bethe period above alluded to. But lieving that it was not exercised, it is by no means to be conceded, even if it existed, at the period that because offences, of the na- when the constitution of the United ture we are now considering, may States was formed ; and if so, it righfully belong to the jurisdiction would seem to follow, that, to the of the English admiralty, the power exercise of jurisdiction over such of that government to regulate her offences, some act of the national fisheries being unquestionable, con- legislature, to punish them as offengress has a like power to declare ces against the United States, is similar acts, or any acts at all, necessary. We find, from the done by individuals in relation to opinions of learned and eminent the fisheries within the limits of the counsel, who were consulted on respective states, offences against the subject, that misdemeanors, the United States. There are, doubt. committed upon the sea, had never less, acts that may be done upon the been construed as being embraced navigable waters of a state, which by the stat. 28, H. 8. c. 15; and the government of the United that the criminal jurisdiction of the States, and that of the state, have a admiralty, except as exercised unconcurrent power to prohibit and to der that statute, had become obsopunish as offences—such, for ex. lete; so that, without an act of ample, as throwing ballast into parliament, they could not be pro. them, or in any other way impeding secuted at all. 2. Browns C. and A. the free use and navigation of such law, app'x, 519 to 521. If then it rivers. But we hold that the power could be admitted that congress to regulate the fisheries belonging might legislate upon the subject of to the several states, and to punish fisheries within the limits of the those who should transgress those several states, upon the grounds of regulations, was exclusively vested the admiralty and maritime juris