Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-03-13
Judge ThOmpsOn's Dissenting
Views.

Views.
Thompson, Judge, dissenting, did not
have written opinion, but said in sub
stance: With all due respect for the ma
iority of the court, | most emphatically
dissent from their holding in respect to
what constitutes boatabe waters within the
meaning of section 40, chapter 2, of the
constitution of Vermont. This is solely
question of construction. This provision
of the constitution is to be read in the light
of the circumstances and surroundings I'M
der which it was adopted, keeping in mind
the evils which it was intended to prevent
and the rights intended to be conferred.
This provision has existed, substantially as
it now is, from the time of the adoption of
the constitution of 17I7. The trainers of
that constitution knew that the English
system of fish and game laws had been
most fruitful source of crime, and | think
1t was their purpose TO so provide that this
state should never be cursed by like sys-
TEN. They believed that the raising of
men was of more Importance than the
breeding of fish for sport or for profit
think they intended to use language so
plain that the wayfaring man though a
fool could understand it, and in speaking
of "boatable waters | think they meant
waters boatable in fact, without regard to
whether such waters could be utilized for
conveying to market the products Of the
farm, the forest. the mine or the factory.
In that early day and prior thereto, canoes
and boats were among the principal means
Of locomotion. In passing from TIE north
to the south or from the west to the east of
this state in early times, the rivers and the
ponds. great and small, were utilized, the
boats or canoes being carried overland from
/ the one to the other where connection
could not be made by water. Thus "boata-
| ble waters at the time of the original
adoption of the constitution, conveyed to
the minds of the trainers thereof and to the
| inha 1itants Of the state, the idea of all
waters boatabe in fact. Such has been
the construction given TO these words and
acted upon by the inhabitants of this state
for more than a century.
Such construction is entitled to great
weight in determining what was meant by
this provision of our organic law. At the
! time of the adoption of the constitution of
| III the common law of England had not
been adopted by legislative enactment;
the state was not then a member of the
| Federal Union and therefore was not pre-
| cluded from passing laws or constitutional
| provisions impairing the obligation of con-
tracts. The power of the state was then
as omnipotent as that of the parliament of
| Great Britain, which can take private
property for public use without compensa-
ton. 1t therefore had the power, notwith-
standing any provisions in the New Hamp-
shire or other grants to he contrary, TO
make waters boatabe in fact free all its
D tUha hitants fnr "a ,fb feel
under such proper regulations as might
thereafter be provided 10y the General As
| semb)y. | am not prepared to say that
| by this section of the constitution there
was not reserved to the legislature the
power of granting the right to its inhabi-
tants, at suitable seasons OF the year, TO
pass over private property to reach such
waters for the purpose of fishing therein.
The opinion of the majority is based
upon cases decided by the English courts,
and upon the theory that the law as enun-
| cated in those decisions is the common law
of this state. By this assumption the fact
is ignored that this state has only adopted
| so much of the common law of England as
| is applicable TO the local situation and cir
cumstances and is not repugnant to the
constitution or laws of this state, and that
such adoption was subsequent 10 the adop-
| ton of the constitution of l7IT. If the
construction of the constitution for which
/ contend Is correct, these principles of the
common law are repugnant to our consli-
| tuition, and therefore have never been
| adopted as the common law of Vermont.
Another reason which leads me to the
opinion which hold is the further fact
that in that early day the fish Astounding
in the waters of this state were often re-
sorted - by the people as one of the means
of subsistence and ! think for this reason
also it was intended that the right TO take
fish from the waters of this state should be
limited only by the fact that the waters in
which they were found were not boalable
in fact.
When we consider the crime and misery
in England during the last century result
ing from Its private fish and game pre-
serves, protected by its system OF fish and
game laws, and then consider how free
from such crime and misery during that
time this state has been, it is apparent that
this provision of the constitution as CON
strued by the people was one of the wisest
that could have been framed.
Other reasons might be suggested for
dissenting from the holding of the court,
Blu. | will not take the time to suggest
tlitll' MS utCiSlOu Is ulOSl lar reaching
in its consequences. Hitherto in our his
tory, our people young and old, have
tished as a matter OF right in all waters
boatable in fact. This freedom to asso-
ciGte with and enjoy nature has borne its
fruit in the brave and liberty loving men
whom Vermont has produced. The result
of this decision is TO change a large por-
ton of such waters into private fish pre-
serves and to exclude the inhabitants of
this state from the rights which they have
hitherto so freely used aud enjoyed.
l understand the holding of the majority
of the court to be that only such waters
are boatable within the meaning of the
constitution as can be utilized in convey
ing to market the products of the farm,
the forest, the mine and the factory, eX-
GLIDING the use of waters boatable in fact
for purposes of pleasure only. The only
door of escape from this decision is the
holding that in each case the jury must de-
termine whether the waters in question
can be utilized for the transporting to
market products of the farm, the forest
the mine and the factory. 1t may be that
juries, moved by what an ancient law