Peninsula enterprise. [volume] (Accomac, Va.) 1881-1965, 1891-04-18

loyal view OF 1t; cofence of rights Of oyster
mon In public waters CT our State; tho oyste
grounds common property; authority of III
Legislature to sell or lonso them denied IL
such power belonging to 1t.
Mr.. EDIToR:-For several month!
past there has been a great deal O.
discussion in the newspapers. of what
is comm only called 1.-The oyster ques
tion.n The meaning of that question
/ understand to be plainly, whether
or not the oyster grounds in our pub
lie waters shall be divided into par
cells and sold or leased to individuals
to be owned by them us their private
property, to the exclusion of all the
rest of our citizens. Such appear:
clearly to be the object of the crusade
now being carried on against tht
rights of ovsterlnen in the public
waters of their own State.
Now, Mr. Editor, | maintain that
the right to take oysters in the pub.
lie waters of our State belongs in
common to each and every citizen OF
Virginia. This common right OF
fishery, rs it is usually termed, exists
and is firmly established by the COM
mon law. Chancellor Kent, in his
commentaries on American Law, posi-
lively declares, that 1.-THE right of
fishery in the sen. and in the bays
and arms of the sea, and in navigab!c
or tide waters, under the free and
masculine genius of the English conn
mon law, is a right pablic ard com
mon to every person. He further
tells IT'S that 'thc common right OF
fishing III navigablc waters is found
ed on s;lch plain PRINCIPLES of natural
law, that it is considered by many
inriSts us part Of the law of nations. y
He also saws, that ''the Civil law do
c!ared, that the right of fishing in
rivers, rs we'll as in the sell, AMI ports,
was common" By way of illustra-
ton and support OF The doctrine laid
down by him, he reviews u notable
case decided by the highest court of
New Jersey, and concludes by saying.
"the law is now declared, after very
profound and eXhaustinS forensic dis
cussion. to be. that thorc is no sew
eral fishery in the navigahle waters
of New Jersey, bnt the same is couI-
mon TO all the people of the State.
3 kent's Comm, Alb.
Doctrine to the same effect is laid
down by Fattel in his Law Of Nations.
Book /, chap. 20. He refers to the
running water, the sea. the fish. &c,
as things common. He describes
them as common TO all the citizens
who take advantage of them, each
according TO his necessities or accord
ing to the laws which regulate their
use; and these are called common
property" He says, that "the SOW.
ereign may make laws to regulate
the manner in which common prop
erty is to be used" "Thus the SOW
ercign may establish wise laws with
respect TO hunting and fishing,-for-
bid them in the seasons Of propaga-
tion,-prohibit the use of certain
nets, and of every destructive method
&C. "He cainot. indeed, take away
their right from those who have ii
share in that property; but the care
he ought to take of the public repose
and Of the common advantage of the
citizens. gives him right doubtless
to establish laws to this end, and con.
se1uentlv to regulate the manner in
which things possessed in common
are to be used"
It will thus be perceived that whilst
the sovereign may and oughtto regu-
late the manner in which I'LL the citi
zens may use their common property
he cannot take away from them Their
right to use it; and I feel justified in
saying that the position I have taken
in behalf of our oystermen engaged
in the business of taking this com
mon property, is fully sustained by
authority everywhere respected by
jurists and statesmen.
BY repeated acts of our legislature
''all the beds of our public waters
are recognized MS entitled to be used
by all the people Of the State, for the
purpose of fishing and of taking oys
tiers and other shell fish. The right
is not created by those acts; it existed
independent of, paramount and long
prior to them, -being derived from
the common law; and those acts are
but in conformity and subordination
to and corroborative of the free an6
lawful common right belonging to al
the people of our State.
There are persons who seem to i'm
agine that the legislature has, il
some mysterious way, authority an6
power to do just about whatever il
pleases; as if endowed with sort o.
omnipotence commensurate with the
limits of the State. But such an as
sumption is entirely erroneous; it i!
not only that, but is repulsive to ev
ery sentiment of freedom and sound
craftsmanship; it is utterly incon
sistent with the great and fundamen
tai principle of a republican govern
ment and with a right of the citizens
to the free enjoyment of their prop
erty.n The language just quoted il
that of the Supreme Court of the U
S., in case in which the extent Of
legislative power was considered, ant
the court repudiated, with no small
degree of warmth, the assumption o.
the unrestrained authority Of q legis
laGure over the rights of the people O.
the State.
1t rejected the idea of such "trans
cendental sovereignty" existing in q
legislature, or that the people of {
State can be subjected to it's uncon
trolled and arbitrary exercise" Il
declared that that government Cal
scarcely be deemed to be free, where
the rights of property are left solel!
dependent upon the will of a legisla
tive body without any restraint.
''The people ought not to- be pre-
sumed to part with rights so vital IL
their security and well being, without
very strong and direct expressions O
such an intention" 1t further said
1--WE know of no case in which a legis
lative act to transfer the property o
A to B without his consent, has eve.
been held o constitutional exercise O.
legislative power in any State of the
Union. On the contrary, it has con
stantly been resisted as inconsisten,
with just principles, by every judi
cial tribunal in which it ha
been attempted to be enforced
Peters, 657. 1t will thus be seer
that assumption of absolute powe
by q legislature finds no countenane'