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lice, within their territorial limits, which is not forbidden by the constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of congress upon the same subject-such are inspection, quarantine, and health laws, laws regulating the internal commerce of the state, laws establishing and regulating turnpike roads, ferries, canals, and the like. In the case of Gibbon, vs. Ogden, 9 Wheat. which we consider as full authority for the principles above stated, it is said, "that no direct power over these objects is granted to congress, and, consequently, they remain subject to state legislation. If the legislative power of the union can reach them, it must be for national purposes; it must be when the power is expressly given for a specified purpose, or is clearly incident to some power which is expressly given."

But if the power which congress possesses to regulate commerce does not interfere with that of the state to regulate its internal trade, although the latter may remotely affect internal commerce, except where the laws of the state may conflict with those of the general government, much less can that power impair the right of the state governments to legislate, in such manner as in their wisdom may seem best, over the public property of the state, and to regulate the use of the same, where such regulations do not interfere with the free navigation of the waters of the state, for purposes of commercial intercourse, nor with the trade within the state which the laws of

the United States permit to be carried on.

The grant to congress, to regu late commerce on the navigable waters belonging to the several states, render those waters the public property of the United States, for all the purposes of navigation and of commercial intercourse, subject only to congressional regulation. But this grant contains no cession, either express or implied, of territory, or of public or private property. The just privatum which a state has in the soil covered by its waters, the products of that soil or waters, is totally distinct from the jus publicum with which it is closed. The former, such as fisheries of all descriptions, remains common to all the citizens of the state to which it belongs, to be used by them ac cording to their necessities, or according to the laws which regulate their use. "Over these," says Vattel, book 1, chap. 20, sec. 235, 246, "sovereignty gives a right to the nation to make laws regulating the manner in which the common goods are to be used." "He may make such regulations respecting hunting and fishing, as to seasons, as he may think proper, prohibiting the use of certain nets, and other destructive methods." J. c. sec. 248. The jus publicum consists in the right of all persons to use the navigable waters of the state for commerce, trade, and intercourse, subject, by the constitution of the United States, to the exclusive regulation of congress.

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. If, then, the fisheries and oysterbeds within the territorial limits of a state, are the common property of the citizens of that state, and were not ceded to the United

States, by the power granted to congress to regulate commerce, it is difficult to perceive how a law of the state, regulating the use of this common property, under such penalties and forfeitures, as the state legislature may think proper to prescribe, can be said to interfere with the power so granted. The act under consideration, forbids the taking of oysters by any person, whether citizens or not, at unseasonable times, and with destructive instruments: for breaches of, the law prescribes penalties in some cases, and forfeitures in others. But the free use of the waters of the state, for purposes of navigation and commercial intercourse, is interdicted to no persons; nor is the slightest restraint imposed upon any to buy and sell, or in any manner to trade within the limits of the state.

It was insisted by the plaintiff's counsel, that as oysters constitute an article of trade, a law which abridges the right of the citizens of other states to take them, except in particular vessels, amounts to a, regulation of the external commerce of the state. But it is a manifest mistake, to denominate that a commercial regulation, which merely regulates the use of the common property of the citizens of the state, by forbidding it to be taken at improper seasons, or with destructive instruments. The law does not inhibit the buying and selling of oysters after they are lawfully gathered, and have become articles of trade; but it forbids the removal of them from the beds in which they grow, (in which situation they cannot be considered as articles of trade,) unless under the regulations which the law prescribes. What are the

state inspection laws, but internal restraints upon the buying and selling of certain articles of trade? And yet, the chief justice, speaking of those laws, 6 Wheat. 203, observes, that "their object is to improve the quality of articles produced by the labor of a country, to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it be comes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose." Is not this precisely the nature of those laws which prescribe the season when, and the manner in which, the taking of oysters is permitted? Paving stones, sand, and many other things, are as clearly articles of trade as oysters

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but can it be contended that the laws of a state, which treat as tort feasors those who shall take them away without the permission of the owner of them, are commercial regulations?

We deem it superfluous to pursue this subject further, and close it by stating our opinion to be, that no part of the act under consideration amounts to a regulation of commerce, within the meaning of the 8th section of the 1st article of the constitution.

2. The next question is, whether this act infringes that section of the constitution which declares that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states?

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental-which belong,

of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this union, from the period of their becoming free, independent and sovereign. What these fundamental privileges are, it would perhaps be more tedious than diffi cult to enumerate. They may, however, be all comprehended under the following general headsprotection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits or otherwise-to claim the benefit of the writ of habeas corpus-to institute and maintain actions of any kind in the courts of the state-to take, hold and dispose of property, either real or personal and an exemption from higher taxes or impositions than are paid by the other citizens of the state, may be mentioned as some of the particular privileges and immunities of citizens which are already embraced by the general description of privileges deemed to be fundamental ;-to which may be added elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities; and the enjoyment of them, by the citizens of each state, in every other state, was manifestly calculated, (to use

the expression of the preamble of the corresponding provision in the old articles of the confederation,) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the union."

But we cannot accede to the proposition which was insisted upon by the counsel, that, under this provision of the constitution, the citizens of the several states are entitled to participate in all the rights which belong exclusively to the citizens of any particular state, merely upon the ground that they are enjoyed by those citizens. Much less, that, in regulating the use of the common property of the citizens of such state, the legislature is bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens.

A several fishery, either as the right to it respects running fish, or such as are stationary, such as oysters, clams and the like, is as much the property of the individual to whom it belongs as dry land or land covered by water, and is equally protected by the laws of the state against the aggressions of others, whether citizens or strangers. When these private rights do not exist, to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the stateit is the property of all, to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants, in common, of this property, and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent or the express permission of the sovereign who has the power to regulate its use.

This power in the legislature of New-Jersey, to exclude the citizens of the other states from a participation in the right of taking oysters within the waters of that state, was denied by the plaintiff's counsel, upon principles of public law, independent of the provision of the constitution which we are considering, upon the ground that they are incapable of being appropriated until they are caught. This argument is unsupported, we think, by authority. Rutherforth, B. I. c. 5. s. 4 and 5, who quotes Grotius as his authority, lays it down, that although wild beasts, birds and fishes, which have not been caught, have never, in fact, been appropriated, so as to separate them from the common stock, to which all men are equally entitled; yet, where the exclusive right in the water and soil which a person has occasion to use in taking them, is vested in others, no other person can claim the liberty of hunting, fishing, or fowling, on land or waters which are so appropriated. "The sovereign," says Grotius, b. 2. c. 2. s. 5, “who has dominion over the land or waters, in which the fish are, may prohibit foreigners, [by which expression we understand him to mean others than subjects or citizens of the state,] from taking them."

That this exclusive right of taking oysters in the waters of NewJersey, has never been ceded by that state, in express terms, to the United States, is admitted by the counsel for the plaintiffs-and having shown, as we think we have, that this right is a right of property, vested either in certain individuals or in the state, for the use of the citizens thereof, it would, in our opinion, be going quite too far, to

construe the grant of privileges and immunities of citizens, as amounting to a grant of a cotenancy in the common property of the state, to the citizens of all the other states. Such a construction would, in many instances, be productive of the most serious public inconvenience and injury, particularly in regard to those kinds of fish, which, by being exposed to too general use, may be exhausted. The oyster beds belonging to a state, may be abundantly sufficient for the use of the citizens of that state, but might be totally exhausted and destroyed, if the legislature could not so regulate the use of them, as to exclude the citizens of the other states from taking them, except under such limitations and restrictions as the laws may prescribe.

3d. It is lastly objected, that this act violates that part of the constitution, which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. The taking of oysters out of season, and with destructive instruments, such as dredges, is said to be an offence against the ancient ordinances and statutes of the admiralty, and that it is punished by the admiralty as a misdemeanor. The authority relied upon to establish this doctrine, is one of sir L. Jenkins' charges, to be found in the 2d vol. of Brown's C. and A. Law, p. 475.

The amount of the argument is, that some offences of this kind, are cases of admiralty and maritime jurisdiction. The laws of a state upon the same subject, vesting in the same tribunals jurisdiction over them, are repugnant to this grant of jurisdiction to the judiciary of the United States.

This argument, we think, can

not be maintained. For, although the various misdemeanors, enumerated by sir L. Jenkins in his charges, may have been considered as admiralty offences at that period, either under the common law or the ancient ordinances and statutes of the admiralty, it remains yet to be shown, that they became such, and were cognizable by the judiciary of the United States, independent of some act of the national legislature to render them so. Many of those offences are already incorporated into the criminal code of the United States; and no person, it is presumed, will question the power of congress, by further legislation, to include many other offences, to which the jurisdiction of the admiralty in England extended at the period above alluded to. But it is by no means to be conceded, that because offences, of the nature we are now considering, may righfully belong to the jurisdiction of the English admiralty, the power of that government to regulate her fisheries being unquestionable, congress has a like power to declare similar acts, or any acts at all, done by individuals in relation to the fisheries within the limits of the respective states, offences against the United States. There are, doubtless, acts that may be done upon the navigable waters of a state, which the government of the United States, and that of the state, have a concurrent power to prohibit and to punish as offences-such, for example, as throwing ballast into them, or in any other way impeding the free use and navigation of such rivers. But we hold that the power to regulate the fisheries belonging to the several states, and to punish those who should transgress those regulations, was exclusively vested

in the states, respectively, at the time when the present constitution was adopted, and that it was not surrendered to the United States by the mere grant of admiralty and maritime jurisdiction to the judicial branch of the government. Indeed, this power in the states, to regulate their fisheries in navigable rivers and waters, was not, in direct terms, questioned by the plaintiff's counsel, and yet their argument upon this point, when followed out to its necessary consequences, amounts to a denial of that power.

As to the ancient criminal jurisdiction of the admiralty, in cases of misdemeanors, generally committed on sea or on waters out of the body of any country, we have very respectable authority for believing that it was not exercised, even if it existed, at the period when the constitution of the United States was formed; and if so, it would seem to follow, that, to the exercise of jurisdiction over such offences, some act of the national legislature, to punish them as offences against the United States, is necessary. We find, from the opinions of learned and eminent counsel, who were consulted on the

subject, that misdemeanors, committed upon the sea, had never been construed as being embraced by the stat. 28, H. 8. c. 15; and that the criminal jurisdiction of the admiralty, except as exercised under that statute, had become obsolete; so that, without an act of parliament, they could not be prosecuted at all. 2. Browns C. and A. law, app'x, 519 to 521. If then it could be admitted that congress might legislate upon the subject of fisheries within the limits of the several states, upon the grounds of the admiralty and maritime juris

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