small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and between the states, a power which has not been so exercised as to affect the question. We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

The oyster law of the state of New Jersey, which declares, that no person residing in, or out, of the state, shall at any time dredge for oysters, in any of the bays or waters of the state; and also, that no person who is not an inhabitant and resident of the state shall gather oysters in any of such waters, on board of any vessel not wholly owned by some person, inhabitant of, or actually residing in, the state, under the penalty of ten dollars, and forfeiture

1 Wilson, &c. v. Black Bird Creek Marsh Company, 2 Peters (U. S.) R. 245. This case was cited by the supreme court of Indiana with approbation in the case of Cox v. The State, 3 Black. (Ind.) R. 197.

of the vessel, &c. employed in the commission of such offence, is not repugnant to any of the above named provisions of the constitution of the United States.1 A statute of the state of New Hampshire, regulating the mode of rafting and driving timber down the Connecticut river, was held not to be a regulation of commerce among the several states, within the meaning of the constitution.2

· Hence the states, in reference to their right of property in the tide waters which were within their jurisdictional limits, correspond, in reference to the control of the general government, to individuals who have acquired an exclusive property in the soil covered by an arm of the sea by a grant from the state. In such case, the public are entitled to an easement in such arm of the sea for the transportation of goods, merchandise, and passengers, in boats and vessels; and the sovereign power of the state may by law prescribe rules and regulations to preserve this public easement unimpaired. No appropriation of the soil can be made, however, except by the grantee of the soil himself; but the grantee cannot so exercise his right of property as to obstruct or render inconvenient the navigation, any more than a person who has the fee simple of a road can obstruct or annoy the passing over it. As it is expressed by

1 Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 371.

Scott v. Wilson, 3 N. Hamp. R. 321.

Lord Hale, the jus privatum is subject to the jus publicum.' The jus privatum of each state in its tide waters is subject to the jus publicum of the United States, and of the people of the United States, which is a free and uninterrupted passage to the people of The states have authority to pass all every state. laws to regulate the tide waters and the soil under them, within the jurisdiction of the sovereignty which their governments may deem useful or expedient, if they do not come into collision with any law made by Congress in virtue of the constitutional powers which have been mentioned, with which Congress is invested.

1 Hale, De Jure Maris, Harg. Tracts, 32.

6*

CHAPTER III.

"SHORE," "HIGH-WATER MARK," AND NAVIGABLE

RIVER DEFINED.

HAVING shown, that by the common law as expounded and settled in England, and as recognized and applied by the judicial tribunals in the United States, the right of property in tide waters, and in the soil under their surface, is primâ facie in the sovereign, and held subject to the right of use of the public, or jus publicum; in order to determine the exact limits of this sovereign and public right, it next becomes necessary to consider what, in legal acceptation, is understood by the terms "shore," "high-water mark" and "navigable river."

A learned legal writer has thought proper, in describing what is meant by the shore, to introduce the verse from the 13th chapter of St. Matthew, wherein it is said, that our Saviour "went into a ship and sat there, and the whole multitude sat on the shore." From this passage the writer infers, 1st, that the shore was the dry land, because they sat thereon; 2d, that it was a great quantity of ground, for there was a multitude of people; 3d, that it was near the brink of the water, because

they heard Jesus speak unto them from the ship.' This mode of proving a legal argument, it has been said, is not so much followed now as in the quaint times in which the learned "reader" on Sewers lived and argued; and it may be observed, that, as it was a lake, without tides, on which Jesus embarked, it could not properly be said to have a "shore," according to our legal understanding of that term; it had "ripam," but not "littus."2

3

By the civilians the "sea-shore" was denominated littus maris; so that both the English and Latin names appear to be derived from the sea itself, as participating more of its nature than of the land, though it certainly participates in some degree of each. In legal construction, it is that space of land which is alternately covered and left dry, by the rising and falling of the tide. In other words, it is the space which is between the high and low-water marks. This space is sometimes called, instead of "shore," the "strand," and sometimes the "beach,' and it has been construed, that the word "beach," in a statute, was intended to be applied to such space.5

1 O Callis in his Reading on the Statute of Sewers.

2 Hall's Rights to the Sea, &c.

Sir Henry Constable's case, 10 Co. R. 107.

4 Hale, De Jure Maris, Harg. Tracts, 12; Blundell v. Catterall, 5 B. & Ald. R. 91; App. p. i.

• Cutts v. Hussey, 3 Shep. (Me.) R. 237. And see Pollard's Lessee v. Files, 2 How. (U. S.) R. 607; Phillips v. Rhodes, 7 Met. (Mass.) R. 322.