Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1874-10-12
OYSTER Law Declared demonstrations
nj ~ TO NOn.keSidemtS.

To the u. S. Circuit Court in Richmond OH
Saturday, Judge Bond Delivered the follow
Jog option upcu the cous'ltutlonaIty nt that
portion of the oyster law which refers TO non
residents:
MARYLAND, is held IT, III swer in the County Court
of Gloucester couaty upon an Indictment lound
by the grand jury of that county.
This indictment is founded upon the twenty
second section of chapter ia OF the acts of As
sembly of Virginia, entitled An act for the pre-
seryation of oysters and tn obtain revenue Tor
the privilege of taking them within the waters
| of the comm onwealth," which is as follows:
| "lf any person other than citizen OF this
| State shall take or catch oysters or other shell
fish in any manner or plant oysters in the waters
| tn hereof. or in the rivers Potomac or Poconoke,
he shall forfeit five nun ired dollars, and the yes
sell tackle and appGrtenancesi and any non
| resi- cent shall be d ,cmed to have violated >hls
section who shall allow oysters purchased by
him for sale, and Ind out Is purchased 10 remain
| SC laid down mora than sixty days"
| To obtain his release McCready has pctitiuned
this court for the writ Of habeas CORPUS which
WAS granted him. and he now claims his dis
charge because rs he alleges his arrest Is in VIC
ation of the 4th article of the constitution of the
| United States, which provides THAI the citizens
| of each State shall be entitled to all privileges
and immunities OF citizens in the several States.
1t is urged on the part of the Attorney Gener-
nj that the right to catch or plant oysters Is
neither privilege nor an lmmunlty wlthia the
meaning of the constitution OF the United States,
and that even if it were the petitioner must seek
his redress in the State court where, II this point
| be decided against him, he may have all appeai
to the Supreme Court, and that this court has no
jurisdiction on ha. cas- corpus 10 release him.:
That to catch and plant oyste is the privilege
| of the citizens Of the State of Virginia Is mani
fest from the first section Of chapter pa, which
declares and provides that 'a!l the beds OF the
bays, rivers and creeks, and the shores OF the
sea within the jurisdiction OF this commonwealth
shall continue and remain the property OF the
commonwealth, and may be used US common
BY all the people Of the state for the purpose OF
fishing and fowlng and OF taking and catching
oysters. &C." Tho State Of Frginia after de-
claring the beds Of the bays and rivers her prop
erty m, ght have prohibited her citizens from
taking and catching oysters, and it would not
have been lawful so to do. When having that
property she declares that all her people msy
take them under prescribed conditions, she grants
them right and the privilege of so doing.
That such was the understanding Of the Gen
eral Assembly Is manifest from the title OF the
net which calls it n privilege, and from the cap
ton Of the section 6, which determines what res
idents shall pay for the ''prv:ege.'
| From this privilege then common to all clt-
Zans Of Virginia. all non-rcsidcnts are excluded
No provision is made for their payment of the
tax demanded Of the citiz ms OF Virginia, nor OF
a higher rate. They are denied the privilege
entirely.
In the case Of Paul VS.. Vir .inia IS WalD in
commenting on this clause of the Atm article OF
the constitution of the United States, Mr. Justice
Field says: 1T wa: undoubtedly the % ject OF
the clause in question to place the citizens of
each State upon the same footing with citlzons
Of other States 30 far as the advantages resulting
i from citizenship in those States are concerned.
1t relieves them from the disability OF aicnsge
in other States"
If this were the object of the clause, rs it un
doubtedly WAS, the act of Assembly OF Virginia
under consideration mas nm entirely different
and contrary object, for it fastens the disability
Of a!ienage upon non. residents ard places then;
on different footing entirely from the citizens
OF Virgina.
The act is manifestly unconstitutional So far
As it concerns non-residcntS; and It only re-
mains to inquire whether or not the petitioner Is
entitled in this court the writ Of hal :ss corpus.
BY the act approved February 5, 1867, author
ity is given to the several courts and justices OF
the United States to graft writs Of habcas cor.
pus in Ill cases where any person IS restrained of
his liberty in violation of the constitution of the
United States. Having found that the act of
Assembly of Virginia by virtue OF h:ch the Pc
titoner is detained in custody is in violation OF
the clause Of the 4th article above quoted, 1t re-
mains only for the court to give him the benefit
of the writ ard to order his discharge which Is
| accordingly done.