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by the judiciary of the United States, independent of some act of the national legislature to render them so. Many of those offences are already incorporated into the criminal code of the United States, and no person, it is presumed, will question the power of Congress, by further legislation, to include many other offences to which the jurisdiction of the admiralty in England extended at the period above alluded
But it is by no means to be conceded that, because offences of the nature we are now considering may rightfully belong to the jurisdiction of the English admiralty, the power of that government to regulate her fisheries being unquestionable, Congress has a like power to declare similar acts, or any acts at all, done by individuals in relation to the fisheries within the limits of the respective states, offences against the United States. There are doubtless acts which may be done upon the navigable waters of a state which the government of the United States, and that of the state, have a concurrent power to prohibit, and to punish as offences; such, for example, as throwing ballast into them, or in any other way impeding the free use and navigation of such rivers. But we hold that the power to regulate the fisheries belonging to the several states, and to punish those who should transgress those regulations, was exclusively vested in the states, respectively, at the time when the present constitution was adopted, and that it was not surrendered to the
United States, by the mere grant of admiralty and maritime jurisdiction to the judicial branch of the government. Indeed, this power in the states to regulate the fisheries in their navigable rivers and waters, was not, in direct terms, questioned by the plaintiff's counsel ; and yet their argument upon this point, when followed out to its necessary consequences, amounts to a denial of that power.
“ As to the ancient criminal jurisdiction of the admiralty in cases of misdemeanors generally, committed on the sea, or on waters out of the body of any county; we have very respectable authority for believing that it was not exercised, even if it existed, at the period when the constitution of the United States was formed, and, if so, it would seem to follow that, to the exercise of jurisdiction over such offences, some act of the national legislature to punish them as offences against the United States is necessary. We find from the opinions of learned and eminent counsel who were consulted on the subject, that misdemeanors committed upon the sea had never been construed as being embraced by the statute of 28 Hen. VIII. c. 15, and that the criminal jurisdiction of the admiralty, except as exercised under that statute, had become obsolete, so that, without an act of parliament, they could not be prosecuted at all. (2 Bro. C. & A. Law, Appendix, 519 to 521.) If then it could be admitted that Congress might legislate upon the subject of fisheries within the limits of the several states, upon the ground of the admiralty and maritime jurisdiction, it would seem to be a conclusive answer to the whole of the argument on this point, that no such legislation has taken place; and consequently the power of the state governments to pass laws to regulate the fisheries within their respective limits remains as it stood before the constitution was adopted." i
In a subsequent case, in the same court, Mr. J. Baldwin, in referring to this opinion of his learned predecessor, gave to it his entire assent.?
Corfield v. Coryell, 4 Wash. (Cir. Co.) R. 378 – 384. · Bennett v. Boggs, 1 Bald. (Cir. Co.) R. 72.
OF RIPARIAN OWNERSHIP.
Having in the two preceding chapters treated of the two important public rights of navigation and fishery, and of their subjection to legislative authority, it is now proposed to consider in connection therewith, the private rights of riparian owners, as such, in the following order :
1. Right to the water as appurtenant to the upland.
2. Towing on the banks of navigable waters.
1. Riparian proprietors, it appears to be well set tled, cannot be cut off from the water against their consent by any extraneous addition to their upland.
In a case in the circuit court of the United States, for the seventh circuit,” Mr. J. McLean
says, ference to the river Ohio, (which he puts upon the
Ball v. Slack, 2 Whart. (Penn.) R. 538. And see Cortelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357.
? Bowman's Devisees v. Watham, 2 McLean (Cir. Co.) R. 376.
same footing as navigable tide waters) — “it is enough to know, that the riparian right on the Ohio river extends to the water, and that no supervening right, over any part of this space, can be exercised or maintained, without the consent of the proprietor. He has the right of fishery, of ferry, and of every other right which is properly appendant to the owner of the soil; and he holds every one of these rights by as sacred a tenure, as he holds the land from which they emanate. The state cannot, either directly or indirectly, divest him of any one of these rights, except by the constitutional exercise of the power to appropriate private property for public purposes; and any act of the state, short of such an appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inoperative and void, and can afford no justification to the grantee against an action of trespass. The accumulation of land by alluvial formation on the bank of the Mississippi, did not cut off the right to a public landing place dedicated when the city was first established. Where the water of the river Patapsco, in Maryland, contiguous to the plaintiff's land, was made dry land by the defendant, by means of scow loads of sand, earth and stone, by reason whereof, as the declaration stated, the plaintiff's land was deprived of the valu
· New Orleans v. United States, 10 Peters (U. S.) R. 662.