The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-03-23


auired by fishing vessels and their cargoes be
ongins he United Staes Propdd That nothing here
in contained shall affect private rights OF fishing, give
right occupy private properly except upon agree
ment
Sir the States Of this Union are sovereign and pos
and enjoy all The rights and perogalves Of
eighties, except only such they have expressly dele
gated TO the general government for the common benefit
OF all the States. AS sovereign States anterior to the
formation OF the constitution. their jurisdiction extended
not only over their lakes habors aud bays, bat
over all the seas adjacent and appurtenant TO their
shores.
II unnecessary determine the precise extent OF this
jurisdiction; but am unw ling. by any word OF assent,
10 conhne il 10 marine league, Independent States
have ever claimed and exercised jurisdiction over the
sea appurenant and adjacent their shQfes and II IS
only the invention OF cannon that writers upon ma
lonal law have confined II 10 marine league The
philosophy OF this modern rule is that this the extent
OF cannoa's reach upon the sea, and the limit there
fore, OF the power OF the States from the shore over the
sea.
But when the reason of the law no longer exists the
law must accommodate itself TO The changes and now
that the guns OF country tell from the shore six miles
upon the sea. it would in my Judgment be unwise
gratuou.ly 10 limit their power TO three miles cay
thus much upon this point, TO show that IN speak ing
OF our territorial jurisdiction OF amaTne league do not
admit the correctness of this modern doctrines and TO
contend that the true and ancient rule upon the subject
s that 1t extends the adjacent seas just FAR as we
can maintain it from the Shore whatever that distance
may be. improvements in the proecles OF warfare may
enable us as completely 10 command the seas upon our
coasts Ten miles three miles from shores; and il
is nexpedentro throw away such advantages by gratui
ous legislation.
Possessing as independent States this jurisdiction over
their bays haIbos and adjacent they possessed the
absolute and exclusive right to all the fisheries therein.
This right was vested in the Crown OF Great Britain
until our revolution and, IN the language OF Chief JUS
tice Taney, (Martin Wadde, l6 Peters, S. c. K
410O
"When the revolution took place, the people Of each
State Lecame themselves sovereign and in that right hold
the absolute right 10 all their navigabe waters and the soils
under them for their subject only the
rights surrendered by the constitution the general gov
ernmenL"
The right Of State to The fisheries in its adjacent
waters clearly established by leading writers upon in.
ternatonal law.
Vatlel says, (Book l, ch. 80, p. 1879
"The various of its cost render very
cepuble OF property People there fish and draw from
thence shells peatis, amber, &c The nation to whom
Ss as ss of
made profit of H. in the il may possess
It's coast that is particularly advantageous and of which
il may become master, shall be permitted appro-
the country Il possesses, and If there sufficient num-
Der OF fish furnish the neghborng nations, of reervng
to itself the great advantage 1t may receive from them by
commerce
"A nation may appropriate things where the free and
common of them would be preudical dangerous
This is second why powers extend their dominion
over the sea along the coast as far as they are able TO pro-
tect their right
"The banks OF the belong ncon,esbly the
that the county of which II part and these
the number Of public things
Ail ID of parts of the sea- the coast
may be said more particularly, aud with mueh greater
o. being occupied and OF greater importance TO The safety
of the country"
Martin, upon the same point, says. Martin on Laws
of Nations, ed. byCobbeu, 4, sec TO- p. 1863
sThe sea surrounding the coast well those parts
of !, which andocked, such as The roads tle bays
gulf, &c those that snated within cannon-shot o
are 50 entirely the property and subsct TO the dominion o.
the of the coast that he has the exclusive right 10 all
relates 10 things unclaimed by any other lawful proprietor
The waters and fisheries over which seek TO extend
our laws peculiarly embraced in the description s4n
by these authors being properly appurenant 10 the I'D
Jacent shores and subject TO me exclusive enjoyment and
| entire control Of It's sovereign ;"
This principle OF national law has been udlciay ex.
amlned and determined IN our own courts and II is nc
longer an open question.
Mr. Justice Washington, in able opinion pro.
nounced in 1879. (Corfied vs.. Coryell, Wash. Cir C.
Rep PIP. 37s, '79, 3sl-2-3) says:
The rst question, them is whether this act, either
section OF ~ Is epugnent 10 the power granted to Congress
and srnong the several States, can mean nothing more
than intercourse with those nations and among those States
Cor the purposes OF trade be the object OF the trade what
may and this intercourse must include all the means by
which be carried whether by the free napfgafton
OF he waters Of the several States or by passage over
land through the States whcre such passage becomes
Necessary to the commercial intercourse between the
States II is this intercourse which Congress /, In
vested with the power Of regulating, and with which
STATE has r ht 10 interfere. But this p)wer, which
prehends me use of and passage over ia waters
Of the several Saies does by impair the right oil
the safe governments TO cg'ate upon all subjects OF inter
hidden by the constitution OF the United States al
though such legislation may indutdy and r,mofog affect
commerce. provided does not interfere with the regula
tons Congress upon the same subject Such arc nspec-
ton quarantine, aud health lave laws regulating the In
commerce Of the Stae laws establishing and regu.
sting unpike roads, ferries canals and the like.
In the case OF Gibbons ~, Ogden, Wheat l, which
consider fn authority for the principles above sta.
ted IL is said that drect power these objects is
granted Congress and consequently they rsan sutect
5ta's legislation. 1.-THE legislative power Of the Union
reach them IL must be ior national purposes IL must
be when the power expressly given for specified pur
pose s clearly incident to some power WHICH -
ptessy given
Bat Ii the power which Congress possesses 20 regulate
does interfere with that OF the State regu-
late s internal trade, although the latter may remotely a
feet external commerce, except where the laws OF The state
may conflict with those OF the general government, much
less that impair the right Of the State
mens oegsaie, in such manner in their wisdom may
seem best over the public properly OF the STATE and 70
regulate the Of the same where such regulations do
interfere with The OF the Of the
Ssle Tor purposes OF commercial intercourse, with the
trade within the STATE which the laws OF the United states
permit TO be carried
The grant 70 Congress to regulate commerce the
navgsbe waters bel ngng 10 The several States ders
those waters he public properly UNITED STATES
all the purposes Of navigation add
sntl only 20 congressional regulation. But this grant
contains cesson either Piled territory
or OF public pryse properly. The jus prpaum Which
State has IN the sol covered by waters totally dis.
tnct from The Jus pubitcpm with which clothed The
ormer, such sbcfes oi all desert puons remains com.
mon 10 all the citzeos of the State which il belongs 10
be used by them according their necessities or according
Yauel b. L. 90 sect 235 2is sovereignty give. risbt
to the nation make laws regulating the manner In which
The common goods are 70 be used lie may make such
regulations respecting hunting and fishing as 10 seasons
as he may think prope prohibiting The OF rerta n
and other desuuctiye methods Yaitel b l. e. 20
2is The jus ppbienm consists IN the right OF MI
persons the nsvigabe OF the State for
commerce, trade, and Intercourse subject by the oon.
sution Of the United States, the exclusive OF
| Congress,
"G then. fhcres and oyster beds within the territorial