Page images
PDF
EPUB

has not been taken from the States. It must reside somewhere. They had it before the Constitution was adopted, and they have it still."

§ 202. These views have been repeatedly enunciated by the Supreme Court of the United States. Thus, in Martin et al. v. Waddell,1 the court said, "When the Revolution took place, the people of each State became themselves sovereign, and, in that character, hold the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution to the General Government."

§ 203. In Pollard's Lessee v. Hagan,2 the court said, "The right of eminent domain over the shores and the soil under the navigable waters, for all municipal purposes, belongs exclusively to the States, within their respective territorial jurisdiction; and they, and they only, have the constitutional power to exercise it. *** But, in the hands of the States, this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction, with which the United States have been invested by the Constitution. For although the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on the shore, but municipal power, subject to the Constitution of the United States, and the laws which shall have been made in pursuance thereof."

§ 204. In Gibbons v. Ogden, it is said, "Inspection laws form a portion of that immense mass of legislation, which embraces every thing within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws, of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of that mass.'

116 Peters, 410.

39 Wheaton, 203.

[ocr errors]

23 Howard, 230.

§ 205. Bridges are of the same nature with ferries, and are, undoubtedly, within the category thus laid down.1

§ 206. The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the States.

§ 207. Whether the power in any given case is vested exclusively in the General Government, depends upon the nature of the subject to be regulated. Thus, pilot laws are regulations of commerce; but if a State enact them in good faith, and not covertly for another purpose, they are not in conflict with the power "to regulate commerce committed to Congress by the Constitution.2

[ocr errors]

§ 208. In the Wheeling Bridge Case, already referred to, the Supreme Court placed its judgment upon the ground that Congress had acted upon the subject, and had regulated the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered with the enjoyment of this use, was inconsistent with, and in violation of, the acts of Congress, and destructive of the rights derived under them; and that to the extent of this interference with the free navigation of the Ohio River, the act of the Legislature of Virginia afforded no authority or justification. It was in conflict with the acts of Congress, which were paramount law.

§ 209. We find, then, in considering this subject, 1. That the States are the absolute owners of the navigable rivers, their beds and shores.3

1 People v. T. & R. R.R. Co., 19 Wend. 113.

2 Cooley v. Board of Wardens, 12 How. 299.

3 Pollard's Lessee v. Hagan, 3 How. 212.

2. That the States continue to exert all powers over the same not granted to Congress.1

3. That the State can authorize obstructions to navigation, although no subordinate body acting under it can exert the same power.2

4. That the State may pass laws to cause navigable rivers to be improved, and grant power to collect tolls from vessels passing up and down the same, to defray the expenses thereof.3

5. That, while the States have power to grant to individuals the privilege to erect bridges over navigable rivers, yet these bridges must be so constructed as not to be in conflict with any law of Congress which exists, and is the paramount law.4

6. That it is for Congress to determine, where its full power shall be brought into activity, and as to the regulations and safeguards which shall be provided to, secure the national right.5

7. That the Ordinance of 1787 had no binding force on the States carved out of the North-west territory.6

8. That Congress may regulate all bridges over navigable waters.7

13 Wheaton, 387; 14 Peters, 617; 2 Dallas, 435; 4 Cranch, 75; 12 Peters, 524; 3 How. 212; 16 Peters, 410.

2 4 Pick. 460; Vattel's Law of Nations, 43, c. 9, b. 1; 12 Pick. 467; 2 Mass. 489; 12 Peters, 91; Angell on Tide-Waters, 45, 46, 128; 2 New Hamp. 22.

3 12 Conn. 7; 9 Johns. 507; 14 How. 568. 43 Wallace, 713-744.

5 3 Wallace, 713-744.

38 Ill. 467-482; 3 How. 212; Ibid. 589; 10 How. 82.

7 3 Wallace, 729.

CHAPTER VIII.

FISHERIES.

§ 210. WE have seen in a former part of this work, that Bracton says, that all rivers and ports are public, and it would follow, therefore, that the right of fishing in a port or in a river is common. This is the rule under the Civil Law.1 The right, however, was confined to that people within whose borders the navigable river or sea was. "For," says Puffendorf, "though fishing is abundant in the sea, it is manifest, that it may, in part, be exhausted, especially, if all nations should desire such rights and liberty near the coasts of any particular country; and, as it is very usual, that some particular kind of fish, or, perhaps, some more precious commodity, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent, the congregation of many people to that part must, necessarily, prejudice the people of the neighboring shore. In this case, then, there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore, or sea, than those who are seated at a distance from it.”2 And, according to Bodinus, by a kind of common right enjoyed by all princes of maritime countries, the particular sovereign may command and control those who approach within sixty miles of the shore.3

§ 211. The general immunity, by virtue of which all nations may fish in the sea, is confined to those seas which have not been appropriated by a particular clause, or are not within a certain distance from its shores; for, although

1 "Flumina autem omnia, et portus publica sunt: ideòque jus piscandi omnibus commune est in portų fluminibusque." Just. lib. 2, tit. 1, s. 2. 2 Lib. 4, cap. 5, sec. 7. 3 Herodian, lib. 2, cap. 15.

by the Law of Nations, the sea is, in general, open to all mankind, the right of fishing in ports and rivers, or even on the coasts of an independent State, could never have been considered, or intended to be admitted, as an universal right; nor could a foreign power send vessels to navigate within the limits of such maritime districts, or take fresh running water on the shore, without permission expressed or implied; neither can the interests of maritime States admit a promiscuous liberty to strangers to fish or navigate within their seas, since it might affect both their personal security and personal sustentation. Their personal security would be endangered by the facility afforded to foreign powers to make inimical incursions upon their shores, and their food might be lessened by the exhaustion of their fisheries. While, in former times, sovereigns might control the approach of vessels within sixty miles of their shores, as, we have seen, Bodinus holds; the modern authorities on this subject agree that each State is mistress of the sea, on all sides, within cannon-shot of her coasts, which is explained to be three leagues; and, for that reason, a vessel taken within cannonshot of a neutral fortress is not a lawful prize.1 Those parts of the open waters which encompass the four sides of the British Islands have been acknowledged, by most nations, as her lawful possessions, and as exempt from the intrusion of other nations.2

§ 212. The kind of fisheries mentioned in books are five; namely, a common fishery, a several or separate fishery, a free fishery, a common of fishery, and a fishery in gross. There is, however, some confusion on the subject. Woolrych says, that these several kinds may be resolved into four; namely, a public, a several, a free, and a common of piscary.3

1 Vattel, 128, 129; Martens, 160; 2 Wooddeson, 443.

2 See Selden, 183; Martens, 161; Molloy, 113; Com. Dig. tit. Prerogative, B. 1, D. 50; Chitty's Game Laws, 243.

[blocks in formation]
« PreviousContinue »