Where the plaintiff stated in his declaration his possession of a fishery in a public navigable river, and of oysters and oyster brood lying in the bed of the river, and charged, that the defendant, by negligent navigation of his vessel, at times of the tide unseasonable, placed her so that she struck against, and settled upon, the bed of the river, and destroyed large quantities of oysters and oyster brood; it was held, that a tidal navigable river is a highway at all times and states of the tide, and is not suspended during such periods of the tide as leave the channel too shallow to float vessels; and that any grantee of the crown of the soil in such river, must take it subject to such right.'

Free and convenient navigation of navigable water being a primary object, the legislature of a state may promote it by artificial means, and render the water more useful to the public for navigable purposes, even though the privilege and convenience of fishing of the riparian owners, may be thus impaired.2

A sense of the importance of preserving navigation unobstructed, in all navigable rivers, was manifested in England at a very early period, as is indicated by the laws relating to sewers, which are remarkable for their antiquity. Especially does it appear by the

1 Mayor of Colchester v. Brooke, 9 Jur. 1090 ; Q. B. 5 Harr. Dig. sup. 781.

2 Hart v. Hill, 1 Whart. (Penn.) R. 136.

Callis on Sewers, 25. The first statute in print wherein is the

2

celebrated instrument of Magna Charta, which declares, that omnus kidelli deponantur de cetero penitus per Thamesiam et Medwayam et per totam Angliam.”1 The principle of this clause has been considered as discountenancing all obstructions to navigation ; and therefore, on an information filed against the defendant for building locks on the Thames, Lord Chief Justice Holt said, that to hinder the course of a navigable river was against Magna Charta. After Magna Charta, by the statute of Ed. III. c. 4, it was enacted, that "all mills, wears, stanks, stakes and kiddels, which were levied and set in the time of king Edward I., and after, whereby ships and vessels were disturbed, should be cut and pulled down, without being relieved." This statute was confirmed by the statute of 45 Ed. III., which further provided, that "if any such annoyance be done, it shall be pulled down, and he who shall relevy such annoyance, and be thereof duly attainted, shall incur a penalty of one hundred marks to the king, to be levied by the estreats of the exchequer." The statute of 4 Hen. IV. c. 15, which, after reciting, that

66

by wears, stakes, and kiddels in the water of the Thames, and in other great rivers through the realm,

frame of a commission of sewers, is the statute of 6 Hen. VI. Ch. 5, but the commissions contained in the Register were long before that time.

Ib.

See ante, Chap. I. p. 23 – 25.

2 Rex v. Clark, 12 Mod. R. 615.

1

the common passage of ships and boats be disturbed, and also the young fry of fish be destroyed, &c., therefore this statute enacts, that all the former statutes thereof made, be holden, kept, and put in execution." Again, by the statute of 12 Ed. IV. c. 7, all preceding statutes on the subject are confirmed, and penalties prescribed for their violation. These statutes show the sense of the importance which in early times in England was manifested, of the free and unobstructed passage of navigable rivers, and a long continued solicitude and determination to preserve it. By virtue of them, it is held by the courts of England, to this day, that wears appurtenant to fishing places which obstruct the whole or a part of a navigable river, are illegal, unless they can be proved that a license to construct them was granted by the crown before the reign of Ed. I.2

Although in England, the king at this day can make no grant, and do nothing in derogation of the public right of navigation,3 such public right being paramount to any right of the crown,' yet by parliament it may be done, for by an act of that body, the navigation of an arm of the sea may be even

1 See Robson v. Robinson, 3 Doug. R. 307.

2 Williams v. Wilcox, 8 Adol. & Ell. R. 314, (in Queen's Bench 1838); S. C. 35 Eng. Com. Law R. 396. See ante, Chap. I. p. 23 – 27. Harg. Tracts, 85. Hale's Treatise De Jure Maris, &c. And see Chap. I. P. 23-27.

ante,

in

4 Williams v. Wilcox, sup. And see opinion of Catron, C. J., Corp. of Memphis v. Overton, 3 Yerg. (Tenn.) R. 389; and the opin-.

extinguished. But, it will not be contended, that in the United States, either a state legislature, or the federal government, can completely and permanently obstruct any arm of the sea or navigable river, extensively beneficial to the people of the United States for the purposes of internal trade, and which has always been generally resorted to for such purposes, as being capable of sustaining vessels of a large description with their loading.2 The one could not thus totally annihilate navigation, because it would be in collision with the laws of Congress made by virtue of the power given by the constitution to regulate commerce. The other manifestly could not do it, because it would conflict with a right which the states have never relinquished, the sovereign right of property in, and dominion over, all tide waters and the soil under them, within their jurisdictional limits. It would, moreover, if attempted by the legislative power of the general or of a state government, conflict with the free right of passage which the constitution gives to the citizens of one

ion of Bayley, J., in Blundell v. Catterall, 5 B. & Ald. R. 91; App. p. xxxi.

1 Rex v. Montague, 4 B. & Cress. R. 598.

2 Cox v. The State, 3 Black. (Ind.) R. 193. And see ante, Ch. II. p. 59-65.

3 Gibbons v. Ogden, 9 Wheat. (U. S.) R. 1, and cited more fully ante, Chap. II. p. 60.

4

✦ Wilson v. Black Bird Creek Co. 2 Peters (U. S.) R. 245, and cited more fully in Chap. II. p. 63; Piscataqua Bridge Co. v. New Hampshire Bridge Co. 7 N. Hamp. R. 35.

state, within the jurisdiction of another. The river Mississippi is preeminently an open highway, and upon principles of international law, the right of passage in it, by a citizen of any state, is classed among imperfect rights; and such imperfect right is made perfect by the constitution of the United States, which provides, that the citizens of each state shall be entitled to the privileges and immunities of the citizens in the several states.1

The absolute right of a state to control, regulate, and improve the navigable waters within its jurisdiction, as an attribute of sovereignty, or as a right of superintendence over its own internal police, restrained only by constitutional restrictions in favor of the people of other states, as before explained; or by such restrictions in favor of its own citizens, in respect to their private rights, cannot be in any manner disputed. So far as relates to private sentiment, or even personal convenience, they must undoubtedly be subservient to considerations of public expediency, of which the representatives of the public, the legislature, are the sole proper judges. The principle upon which the public right to navigable streams rests, being manifestly undeniable, and the necessary inference being, that no power but the

1 Per Catron, C. J., in Corp. of Memphis v. Overton, 3 Yerg. (Tenn.) R. 389. And see Georgetown (City of) v. Alexandria Canal Co. 12 Peters (U. S.) 91; and Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 379. And see ante, p. 59.