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of America, were
that province, or of any other part entitled to the right of fishing. The question received the opinion of the most able counsel of the day, who thus considered it.-"The term regnum' in the original charter, or realm,' does not extend to America, in the proper and legal signification of the word, nor could it be intended to extend to America. Maryland is no part of the realm or kingdom of England, but is a part of its royalty, or of the dominions belonging to it; realm or kingdom is that which gives to the head or governor the title or denomination of 'king.'
"The people of Maryland are the subjects of the king of England, not his subjects of or in the realm, or kingdom of England, but in the dominions belonging to it. This is the proper and strict sense of the words, and corresponds with the nature and regular operation of a saving or exception.
“When the charter of the province was framed, it was thought that extensive fisheries might be carried on here, as a matter of great consequence in the national trade and navigation. As extensive legislative authority was conferred by the charter, under which, regulations might have been made, (if not controlled by the saving) less favorable to the English and Irish, than the inhabitants here; but it is not to be supposed that acts of assembly would be wanting, to put the people here upon as good a footing, as any other, and therefore there seems to be very
little reason for the notion, that the distinction is unfavorable to the people of Maryland, when it only imports that the liberty is secured to one, against the attempts of the other, and yet leaves to the latter the right of exercising it, in what manner they please, not affecting the liberty of the former, if the provincial legislature should think it for the public benefit. And since an act of assembly may confer the same liberty and privilege to the inhabitants of Maryland, that is contained in the saving, may regulate, restrain or control it, as the general interest may require, I apprehend that the saving is rather favorable to the inhabitants here than otherwise, according to the above interpretation." The construction of the colonial charter of Maryland which has been maintained by the courts of Maryland since it became a state at the revolution, is, that the right of fishing in the tide waters of the state is, and ever has been, a public and common right in the people, subject to be controlled by the legislature.
An action of ejectment was brought for one hundred acres of land covered with water, in Raritan bay, in the town of Perth Amboy, in the state of
1 Opinion of Daniel Dulany, Esq., at one time the attorney general of Maryland, when the question was proposed to him in 1768. It is to be found in the App. to the first vol. of the Reports of Harris & McHenry, p. 564.
2 Brown v. Kennedy, 5 H. & Johns. (Md.) R. 193. And see more fully on this subject, ante, Chap. II. p. 40, 41.
New Jersey. The land claimed was beneath the waters of the Raritan river and bay, where the tide ebbs and flows; and the principal right in dispute was the property in the oyster fisheries in the public rivers and bays of East New Jersey. The claim was made under the charters of Charles II. to his brother the duke of York, in 1664 and 1679, for the purpose of enabling him to plant a colony. The land in controversy was within the boundaries of the charters, and is now within the limits of the state of New Jersey. The territory, by succeeding conveyances, became vested in the proprietors of East Jersey, who conveyed the premises in controversy to the defendant in error. By the terms of the grant to the proprietors, they were originally invested with all the rights of government and property which were conferred on the duke of York. The defendant in error claimed the exclusive right to take oysters in the place granted to him, by virtue of his title under the proprietors. The plaintiffs in error, as grantees of the state of New Jersey, under a law of the state passed in 1824, claimed the exclusive right to take oysters in the same place. The supreme court of the United States held, that it would require plain language in the letters patent to the duke of York, to persuade them that the public and common right of fishing in navigable waters, which had been ever since Magna Charta, so carefully guarded in England, and which was preserved in every other
colony founded on the Atlantic borders, was intended in this one instance to be taken away. There was nothing, the court decided, in the charter that required this conclusion. The power which, before the revolution, was in parliament to abridge the public and common right of fishery, or to grant an exclusive piscarial privilege, was, upon the happening of that great event, vested in the state.1
None of the colonial charters differed materially from the charters of Maryland and of New Jersey, in the terms in which the bays, rivers, and arms of the sea, and the soil under them, were conveyed to the grantees, yet in no one of the colonies has the soil under its navigable waters, and the rights of fishery, been severed by the letters patent from the powers of government. From the time of their settlement to the present day, the previous habits and usages of the colonists have been respected, and they have been accustomed to enjoy, in common, the benefits and advantages of the navigable waters, for the purpose of fishing, to the same extent, that they have been used and enjoyed for centuries in England. The inconsistency of its being otherwise, is at once evident on considering that the men who first formed the English settlements, could not have been expected to encounter the many hardships that unavoidably
Martin v. Waddell, 16 Peters (U. S.) R. 369, and cited more fully ante, Ch. II. p. 42, 43. And see App p. xli.
attended their emigration, and to people the banks of the bays and rivers, if the land under the water were so held as private property, that the settler upon the upland was thereby excluded from the enjoyment of the privilege of fishing.1
The English doctrine as to the common right of piscary in tide waters, was declared to be the law by the supreme court of New Jersey, as it has been so declared or so recognized by the courts of other states. The primâ facie common right is, in fact, directly or indirectly recognized in every case in this country, relating to the right of property in tide waters. The legislature of the state of New York, when they re-enacted, in 1787, all the British statutes that were deemed applicable, considered a common of piscary in tide waters an existing right, inasmuch as they provided the writ of novel disseisin for the disturbance of it. The labor and expense of digging out a fishing place, gives no exclusive right of fishery;5 and by the principles of the com
1 See opinion of supreme court of U. States, by Taney, C. J., in Martin v. Waddell, App. p. xci.
2 Arnold v. Mundy, 1 Halst. (N. J.) R. 1.
• Commonwealth v. Charlestown, 1 Pick. (Mass.) R. 180; Berry v. Carle, 3 Green. (Me.) R. 269; Scott v. Wilson, 3 N. Hamp. R. 321; King v. Lay, 5 Day (Conn.) R. 72; Adams v. Pease, 2 Conn. R. 481; 2 Dane's Abr. 692; 3 Kent, Comm. 414.
43 Kent, Comm. 415. And see People v. Platt, 17 Johns. (N. Y.) R. 195; Hooken v. Cummings, 20 Ib. 90; Jennings, ex parte, 6 Cowen (N. Y.) R. 518; Rogers v. Jones, 1 Wend. (N. Y.) R. 237.
Westfall v. Van Anker, 12 Johns. (N. Y.) R. 424.