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attorney general were a party, that I could make a decree which would bind the question between the defendant and the public; and, unless having the attorney a party, would enable me to make a decree which would bind the public, through the attorney general, it appears to me, that it is not necessary to make him a party." A decree for a perpetual injunction to restrain the erection of a nuisance which would endanger the health of the town of Tarborough, in North Carolina, was made upon a bill filed by the attorney general and the inhabitants of the town jointly.1
1 1 Attorney General et al. v. Blount, 4 Hawk's (N. C.) R. 384.
NOTE. Since this chapter was written, the author has met with the following notice in the New Bedford Mercury of April 20, 1847: "A bridge over navigable waters, under the authority of the state, not indictable as a nuisance, in the circuit court of the United States." Then follows an abstract of the opinion delivered by Judge Woodbury, in Boston, on 15th of the same month, quashing the indictment in the case of the proprietors of the New Bedford bridge over the Accushnet river, for maintaining a bridge over navigable waters. The learned judge held, as has been before held (see ante, p. 60–65), that where the states do not grant to Congress powers over their internal commerce or police, those powers can continue to be exercised to any extent by them till they conflict with the proper exercise by Congress of other pwoers, which are granted to it. The old states had, before the constitution, a sovereign power over tide waters, and could obstruct them by bridges, when they deemed them demanded by the public interests; and they still retained the powers before possessed, except where granted to Congress. (See ante, p 86-89.)
OF THE PUBLIC RIGHT OF FISHERY.
FISHERY in the sea, and in the waters which are made to flow inland therefrom by its egress and influence, constituting as it does, a great source of sustentation, has in all ages and in all countries been deemed of such importance, that it has ever been regarded a privilege open and common to all persons. Selden in his Mare Clausum, and Grotius, De Jure Gentium, have collected from the works of the learned of all civilized nations, as well philosophers, divines, and poets, as lawyers, to prove that the waters of the sea are, conformably to the use which nature intended them, as common to all men as the air which blows over them. The obvious justice, that fishery in such waters should be free, open, and common to every one, has made it a part of the civil law and of the common law. Jus piscandi, says the former, omnibus commune est in portu fluminibusque.' The civil law on the subject, is the customary law of France, and is recognized and expressly confirmed, by the ordinance of Louis XIV., which thus declares, (sec. 47) — "We declare the fishing in the sea to be com
1 Inst. L. 2, t. 1. See ante, Chap. I. p. 18.
mon to all our subjects, whom we allow to fish, as well in the high sea, as upon the shore, with the nets and engines specified in this ordinance." The civil code of Louisiana declares, that navigable rivers, sea ports, roads, harbors, &c. are among things public, or among things the use of which is allowed to all the members of the nation; and that hence it follows, that every man has a right freely to fish in the rivers, ports, roads and harbors.1
By the common law, (though the right of fishery is subservient in a measure to the right of navigation), it has ever been well settled, that no mcmber of the community can be excluded from an equal and fair participation of the benefit afforded by tide waters of fishing therein, so long as it remains unrelinquished or not curtailed by public authority, or so long as no particular and exclusive right has been acquired by an individual by prescription, or by the inhabitants of a place, by custom. In England, although the king, says Lord Hale," has the primary right of fishing in the sea, and the creeks and arms thereof; yet the common people of England have regularly. a liberty of fishing in the sea, or the creeks and arms thereof, as a public common of piscary, and may not without injury to their right, be
1 Civil Code of Louisiana, Fisheries, Art. 6.
2 See ante, preceding Chap. p. 80 – 83.
3 De Jure Maris, Harg. Tracts, 11. See also Warren v. Mathews, 6 Mod. R. 73.
restrained in the exercise of it, unless in such places, creeks or navigable rivers where either the king, or some particular subject has acquired a property exclusive of this common liberty." The doctrine as thus laid down is expressly recognized in Carter v.
1" This common Liberty."— Whether there is a distinction between common of fishery, and free fishery, has formerly given rise to much discussion, and discrepancy of opinion. See the discussion at the bar, in Freary v. Cook, 14 Mass. R. 488. The better opinion now is, that there is no distinction. Woolrych says, that sometimes a free fishery is confounded with a several, and sometimes said to be synonymous with common; and again it is mentioned, as a royal franchise. Yet, notwithstanding the diversity of opinions, this author, upon careful investigation of the authorities, thinks, that to consider free fishery as the same with common of fishery, is a reasonable as well as legal conclusion. Woolrych on the Law of Waters, &c. 97. Hargrave considers, that free fishery implies no exclusive right, and is synonymous with common of fishery. Note to Co. Litt. 122, a. Schultes arrives at the conclusion, after having closely studied the various authorities, that libera piscaria and commune piscaria are the same; and they are mentioned, he asserts, in the old authors indiscriminately, without signifying any essential difference. He refers also to the case of Carter v. Murcot, (4 Burr. R. 2162), in which all the judges were of his opinion; and to the case of Seymour v. Courtenay, (5 Burr. R. 2816), in which Mr. C. J. Eyre entertained a like opinion. Schultes on Aquatic Rights, 67. In Melvin v. Whiting, in Massachusetts, the court adopted the opinion, that a free fishery is only a common of fishery, such being the most agreeable to authority, and most conformable to the popular sense of the term "free fishery, in this country."7 Pick. R. 79. A several is an exclusive right of fishery, as is that which is vested in riparian owners opposite their lands, upon all rivers above tide water, in virtue of their ownership of the soil, to the middle of the river. And Kent considers, that the more easy and intelligible arrangement on the subject of piscarial rights, is "to divide the right of fishing into a right common to all, and a right vested in one or a few individuals." 3 Kent, Comm. 411.
Murcot,' in which it was asserted by Lord Mansfield, that a man may have an exclusive privilege of fishing in an arm of the sea; but such right is not to be presumed, it must be proved. In the same case, Yates, J. observed, that he knew a case to fail wherein an exclusive right was claimed, because no prescription was proved, and in that case, it was determined, that the right of fishing in the salt water was common to all. The case of the Mayor and Commonalty of Orford v. Richardson in the king's bench, and afterwards in the exchequer chamber, was determined wholly on the ground, that every subject, primâ facie, has a right to fish in an arm of the sea.2
The common law on the subject of the sovereign and public right of property generally in tide waters, in this country, has been already shown to be unaffected by the colonial charters to what were afterwards the original states of the union, and that new states stand upon the same footing in this respect as the original states.3 The following saving or exception in the charter granted to Lord Baltimore, "saving always to us, our heirs and successors, and to all our subjects of our realm of England and Ireland, the liberty of fishing for sea fish," &c. gave rise to a question in Maryland, whether the inhabitants of
' Carter v. Murcot, 4 Burr. R. 2162.
Mayor, &c. of Orford v. Richardson, 4 T. R. 437.
See ante, Ch. II.