Story, J., whether or not, the power to regulate commerce authorized an extension of the admiralty jurisdiction to the inland lakes,1 but, in The Genessee Chief v. Fitzhugh, Taney, C. J., showed clearly that the judicial power being defined by the Constitution could not be extended by legislation under the guise of a regulation of commerce, the legislative regulation of any subjectmatter of jurisdiction being in its nature essentially distinct from the creation of a tribunal, and the vesting in that tribunal of jurisdiction over any particular subjectmatter. The admiralty jurisdiction is, therefore, limited on inland waters to vessels engaged in and to maritime contracts and torts concerned with, or growing out of, interstate transportation. Therefore, contracts of affreightment between ports of the same state on an inland lake, and contracts for supplies furnished to vessels engaged in such trade" are matters of local jurisdiction, and not of admiralty jurisdiction in the courts of the United States.

32. Before the Revolution, the title to navigable waters and to the soil under them was vested in the crown, or in its grantees. After the Revolution, the people became sovereign, and thenceforth the title to navigable waters within the jurisdiction of a riparian state and to the soil under them became vested in that state for the public use of its citizens." After the adoption of the Constitution, as before, the title to navi

1 The Thomas Jefferson, 10 Wheat. 428.

2 12 How. 443, 452.

3 The Genessee Chief, 12 How. 443; Allen v. Newberry, 21 id. 244; Maguire v. Card, ibid. 248; The Belfast, 7 Wall. 624.

Allen v. Newberry, 21 How. 244.

5 McGuire v. Card, 21 How. 248.

6 Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426; Smith v. Maryland, 18 id. 71; Weber v. Harbor Commissioners, 18 Wall. 57; Rundle v. D. &. R. C. Co., 14 How. 807; Jones v. Soulard, 24 How. 41; St. P. & P. R. R. v. Schurmeier, 7 Wall. 272.

1

3

gable waters and to the soil under them and the right to fish therein remained in the riparian state, its proprietary title extending in the case of inland waters. constituting its boundary from ordinary high-water mark ad medium file, and in the case of the sea and its bays, to the distance that the international jurisdiction of the United States extended; and by force of the Constitution, the United States acquired only the right to exercise over navigable waters its power of regulating commerce, and states which were admitted. to the Union subsequently to the adoption of the Constitution have, of course, in this respect the same rights of sovereignty and jurisdiction as the original thirteen states. The distinction between rights of navigation over waters and the rights to the soil under them is illustrated by two cases. In Smith v. Maryland, the facts were, that the state of Maryland, having enacted a statute prohibiting the taking of oysters in its waters in a certain manner under pain of forfeiting to the state the vessel employed for that purpose, the sloop Volant, owned by the plaintiff in error, and duly licensed as a coasting vessel under the statutes of the United States, was seized under the state statute and condemned to forfeiture in a regular proceeding in a state court. The Supreme Court of the United States affirmed the judgment of the state court, holding that the title to the soil under navigable waters within its jurisdiction being vested in the riparian state, that state could rightfully regulate the exercise of rights of fishing therein, and enforce by judicial proceedings a forfeiture of vessels whose navigators should fail to conform to

1 Barney v. Keokuk, 94 U. S. 324.

2 Pollard v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18. Wall. 57.

3 18 How. 71.

the regulations so prescribed, and that a license to navigate granted by the United States confers "no immunity from the operation of valid laws of a state." The court, however, expressly declined to give any opinion as to the limits of the trust under which riparian states hold the soil under their navigable waters, or to decide whether rights of fishing in such waters could be enjoyed only by the citizens of the state, or by all citizens of the United States in common. The next case, McCready v. Virginia, not only followed in the line of Smith v. Maryland, but also put at rest the question undetermined in that case. The facts were that, under a statute of Virginia similar in terms to the statute of Maryland, save that it also imposed a pecuniary fine upon the offender, McCready, a citizen of Maryland, was indicted, convicted, and fined in a state court, and the Supreme Court of the United States. affirmed the conviction, holding that the riparian state is a trustee, not for all the citizens of the United States, but only for its own citizens as to the soil under its navigable waters, and the rights of fishing in such waters, and that, as Waite, C. J., said, "the right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined," and "it is, in fact, a property right and not a mere privilege or immunity of citizenship," and, therefore, a right which does not, by force of the Constitution, vest in the citizens of other states. It has likewise been held, that the grant to the United States of jurisdiction in admiralty does not carry with it a cession of navigable waters, or of general jurisdiction over them, and, therefore, the case of a murder committed on board a vessel of the navy of the United States, while at anchor in navigable waters within the

jurisdiction of a state, is not cognizable in a court of the United States.1

33. The controversy as to the respective provinces of the United States and of the states in the regulation of navigation was first brought to the attention of the court in the leading case of Gibbons v. Ogden,2 wherein the facts were, that the state of New York had by statute granted to Livingston and Fulton the exclusive right, for a term of years not then expired, of navigating with boats moved by steam all the waters within the jurisdiction of New York, and that license had by mesne assignments become vested in Ogden, a citizen of New York. Gibbons, styled on the record a citizen of New Jersey, was then engaged in the business of transporting passengers on steamboats owned by him, licensed as coasting vessels by the United States, and plying between Elizabethtown in New Jersey and the city and port of New York. Ogden filed his bill in the Court of Chancery of New York, and obtained an injunction restraining Gibbons from running his steamboats in the waters of New York, and a final decree having been entered against Gibbons in the court of last resort of the state of New York, he removed the cause by appeal to the Supreme Court of the United States, which reversed the decree of the court below, and remanded the record with directions to dismiss the plaintiff's bill.3 The

1 U. S. v. Bevans, 3 Wheat. 336.

29 Wheat. 1.

3 Mr. Justice Wayne, in his speech of 26th May, 1847, welcoming Mr. Webster to Savannah, referred to Gibbons v. Ogden as a controversy begun by a Georgian in behalf of the constitutional rights of the citizen," and added, "when the late Mr. Thomas Gibbons determined to hazard a large part of his fortune in testing the constitutionality of the laws of New York limiting the navigation of the waters in that state to steamers belonging to a company, his own interest was not so much concerned as the right of every citizen to use a coasting license upon the waters of the United States, in whatever way their vessels were propelled. It was a sound view of the law

record, therefore, required the court to decide two questions, first, as to the power of the United States to so regulate commerce as to license passenger-carrying steam vessels, plying between different states, to navigate waters within the jurisdiction of a state, and second, as to the power of a state to so regulate commerce as to control the navigation of its waters by vessels engaged in interstate commerce. The judgment of the court sustained the power asserted for the government of the United States, and denied the existence of the power claimed to have been reserved to the state, and in reaching that result the court enunciated in clear terms the criteria of distinction between federal and state power over commerce. They held that the power to regulate commerce with foreign nations and among the several states "includes every species of commercial intercourse between the residents of any one state and the residents of a foreign nation, or the residents of another state," but that it does not "comprehend that commerce, which is completely internal, which is car

but not broad enough for the occasion. It is not unlikely that the case would have been decided upon it, if you had not insisted that it should be put upon the broader constitutional ground of commerce and navigation. The court felt the application and force of your reasoning, and it made a decision releasing every creek and river, lake, bay, and harbour, in our country, from the interference of monopolies, which had already provoked unfriendly legislation between some of the states, and which would have been as little favourable to the interest of Fulton as they were unworthy of his genius." Mr. Webster, in his reply to Judge Wayne, said: "It is true, that, in the case of Gibbons v. Ogden, I declined to argue the case on any other ground than that of the great commercial question presented by it, the then novel question of the constitutional authority of Congress exclusively to regulate commerce in all its forms, on all the navigable waters of the United States, their bays, rivers, and harbours, without any monopoly, restraint, or interference created by state legislation. That question I regarded as all-important. Other grounds might have been sufficient for the disposal of this particular cause, but they were of no public or permanent importance. If that great point had then been waived or evaded, it is easy now to see what inferences unfavourable to the just authority of Congress might have been drawn." 2 Webster's Works, 399, 402.