The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-09

ground tnat congress could not regulate Inc coaS
fisheries as that was right reserved to the severa
States, and not delegated in the constitution to tn,
federal government. Mr.. Mallory's constitutions
point was sustained by decided vote Of the Senate
and Mr.. Davis's proposition was accordingly defeat
ed. As the subject has again assumed importance
by the attempt to infringe upon the rights Of the
States, we give thematerial portions Of Mr.. Msory
speech, and commend II to the attention Of the
Senate
Mr.. MALLoRY-I ask the honorable Senator from
Massachusetts, from whence the general government
derives this right to cede to foreign Power the pro
perty Of the States in their own isheriess By what
authority does he pretend to admit foreign vessels
ton Of State, to take fish which belong exclusive.
~ to the State, but to legisate them on the land
and within the body Of the county Of Slater Where
L his authority for usurping the rights which the
states have never surrendered and comforting them
upon foreign government? Sir, the States Of this
Union are sovereign, and possess and enjoy all the
rights and prer0gatves of sovereignties except only
for s The Ssnss q al a the sss
As sovereign States anterior to the formation Of the
constitution, their Jurisdiction extended not only
over their rivers, lakes harbors and bays, but
4 l. unnecessary to determine the precise extent Of
this Jurisdiction but am unwilling, by any
word of ascent, to confne it to marine league.
Independent States have ever claimed and exer-
cised jurisdiction over the sea appurtenant and ad
acent to their shores; and it Is only since the inven
ton Of cannon that writer's upon national law have
confined 1t TO marine league. The philosophy Of
this modern rule IL, that this is the extent Of can
mons reach upon the sea, and the limit therefore, OF
thepower 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 change; and
six miles upon the sea, it would In my Judgment, be
unwise gratuitousy to limit their power to three
miles. say thus much upon this point, sir to show
that in speaking Of our Territorial jurisdiction Of
marine league do not admit the correctness Of this
modern doctrine, and to contend that the true and
ancient rule upon the subject s that extends over
the adjacent seas Just far as we can maintain It
nom the shore, whatever that distance may be. Inn
provements In the proectiles Of warfare may enable
Ms az completely to command the seas upon our
coasts ten miles as three miles from our Shores and
Il is inexpedent to throw away such advantages by
States this jurisdiction over their bays harbors and
adjacent seas they possessed the absolute and ex-
elusive right to all the fisheries therein. This right
was vested in the crown Of Great Britain until our
fancy, Martin Waddell; le Peters, s. g. r., 4lO)
when the Revolution took place, the people Of each
state became themselves sovereign and in that right
bold the absolute right to all their navgable waters and
the soils under them, for their use subject
only to the rights surrendered by the constitution to the
general government"
The right Of State to the fisheries in it's ada
cent waters u clearly established by leading writer's
upon International law.
Vattel says (Book l, Oh. %, p. 1870:
The various uses Of the near It's coast render II
very susceptible Of property People there FISH and draw
whom the coasts belong may appropriate to itself an sd
vantage which II considered having taken possession
Of and %ss ES q in the :: y
tageous and Of which It may become master, sha II not
sen q dependence on the country possessess and il
there sufficient number Of ash to furnish the neigh
Ssm By
nation may appropriate things where the free and
common use Of them would be prejudical dangerous
to protect their right.
lions that possess the country Of which it ID part and
these are the number Of public things.
have ). d % the q the
greater reason Of the roads, bays straits stu
capable Of being occupied and Of greater Importance to
fhs safety Of the country.
Laws q Nations, cd. by Goblet, Oh. 4, sec. 10,
p. l66)s
The - surrounding the coast we those parts Of
which land locked such a. the roads little bays
CULTS, no., those that situated within cannon shot
Of the shore hat within the distance Of three eagues)
% entirely the property and subject to the dominion
to al the produce Of IT, whether ordinary accidental
a. far relates to things unclaimed BY other lawful
pr9Rs,,so, and a.hr,.. o, ~,,.h :. .... a .v,.,a
laws peculiarly embraced in the description given
oy these sutho = being properly aPpurtenant to the
and control ef it, sovereign.
Thb principle Of national Law has been iudicially
exnmlned and determined in our own courts, and 1t
Is no longer an open question.
Mr.. Justice Washington, in an able opinion pro
nounced In 1928 (Corfield Vi. Colyel, Wash. Cir c.
Rep. PIP. 37s, S7s, 3s1-2-3) says =
The Arst question: then, Is, whether this act either
session Of It repugnant to the power granted TO Con-
sons and snons the several States can mean nothing
than intercourse with those nations and among
those States for purposes Of trade be the object Of the
trade what ii may and this Intercourse must include all
the means by which II BE- carried on whether BY the
free navigation Of the waters Of the several States BY
passage over land through the States where such pas
ssee becomes necessary to the commercial intercourse
between the States is this intercourse which Congess
IT, invested with the power Of regulating, and With
power, which compartments the use OF and pas
sage over the naygabe waters of the several States
does By no means impair the S n ~ nsna police
within their territorial limits which Is not forbidden by
the constitution Of the United States, even although
such legislation may indirectly and emotcy affect com
erce provided It does not interfere with the regulations
Of Congress upon the subject Such are inspection
nal csmmsrce Of the State laws establishing snd rcgu
ating tu- npiie roads, ferries, canals, and the Ike
In the case Of Gibbons Is oglsn Wheat \ whisn We
granted to Congress- and consequently they remain sub
Union can reach them It must be for national purposes
il be when the power expressly given for special
purpose is clearly incident to some power which
But the power which Congress possesses to regulate
does not interfere with that Of the state to
motely affect external commerce. except where the laws
OF the State may conflict with those Of the general gov
s. 70
their wisdom may best the public property OF