HAZARD'S

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

PHILADELPHIA, AUGUST 29, 1835.

RIGHTS OF FISHERY IN THE RIVER DELA- tion of the state, without first entering his seine or net

and that either party shall be permitted to turn this state of the case into a special verdict."

Dated September 9th, 1829.

Two questions are submitted to the court.

1. Whether under the laws of New Jersey the defendant has a right to fish with a gilling seine in any part of the river within the boundaries specified in his description.

2. Whether the laws are constitutional.

By the proviso in the third clause of the compact between the two states, the legislature of each may exercise the right of regulating and guarding the fisheries on the river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted during the season for catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under claim of a

This is a direct recognition of the rights to fisheries annexed to the respective shores of the river.

This definition applies to the words pool fishery, or fishing place, used in the law of 1822, (which leaves the third and fifth sections of the act of 1808 in force,) and enables us to ascertain the true object and meaning of the law in requiring every owner or possessor of a fishery on the Delaware, to describe his pool or fishing place according to the provisions of the fourth section.

mesh of the net, are entangled by their gills; and seldom able to extricate themselves, are thus taken, from whence these seines derive their name. The defendant's net was of the size authorized by the act to be used in certain cases. The defendant is a citizen of Penn ylvania, and resident in the county of Philadel phia. He owned a gilling seine, and was in the habit of drifting between the island and New Jersey shore both in and below the pools of the above named fisheries. On the 23d, 24th, 25th, and 26th days of March Jast, the defendant and one William Eager, were drift. ing in the channel of the river with their net opposite to the fishery of the plaintiff, when their net and boat were seized on the last named day at the instance of the plaintiff, and the summons in this cause served on the defendant. This seine when taken was not within the sweep of the plaintiff's net, nor so as to obstruct him in his haul. The boat and seine were adjudged to Be forfeited by two justices, and ordered to be sold.-common right on said river. The defendant appeared on the return day, and caus. ed his appearance to be regularly entered. The defendant has given a bond to the Prothonotary of the The third section of the law of 1808,† defines a pool Court of Common Pleas of Philadelphia county, ac- or fishing place within the meaning of the act to be, companied by the following description, viz: (Descrip- from the place where seines are usually thrown in, to the tion) "From Samuel Bower's wharf and lands at Ken-place where they have been usually taken out, or where sington, to Fisher's point, the size of the net is about they may hereafter be so thrown in or taken out. fifty fathoms, and of a mesh of about six inches,' "Samuel Bogg." (pro ut the bond and description.) It is admitted, that there is a mistake or clerical error in this description, and that it should have been Fish's point, instead of Fisher's, there being no such place as the latter. Bower's lands and wharf are in Kensington, in the city and county of Philadelphia, in the state of Pennsylvania, and Fish's point in the township of Waterford aforesaid, in this state, about five miles above Ken- Connecting the proviso in the compact with the third sington. On each side of the river, there are numer section of the law of 1808, and the fourth section of ous owners of the shore, within the bounds of this de- that of 1822, we can have no doubt of the meaning of scription, from whom the defendant had no lease or the legislature in every part of the law. The compact permission to enter a fishery in front of their lands.-authorizes the guarding of fisheries on the river annex The defendant when taken was drifting within the ed to the respective shores, against interruptions by bounds named in his description, that is to say, below persons fishing under claim of common right on the Fish's point, and above Bower's wharf, nor had he at river, thus making a plain distinction between a fishe any time fished above low water mark with his seine, ry annexed to the shore, and a fishery by common right or entered upon the shore of the plaintiff, but had al- on the river. The words, fishery pool, or fishing place, ways drifted in that part of the river which is covered as defined in the act of 1808, can apply only to a place with water at all times of the tide. (These fisheries on on the shore to which a fishery is annexed, and there the river Delaware have been used and occupied by can be no pool or fishery in reference to fishing by the respective owners of the adjacent shores, as private claim of common right on the river. A person thus property, before and ever since the Revolution.) The fishing, can be in no sense the owner or possessor of a defendant therefore insists, that he has a right to fish fishery; there can be no pool or fishing place which is with his seine in any part of the river Delaware, by his by any other right than what is common to all the virtue of the aforesaid bond and description, within the inhabitants of the state; it cannot be that fishery intendbounds therein mentioned. But he furthermore ined by the compact, and be guarded against the claim of sists, that the act under which the plaintiff seeks to recover is unconstitutional and void, being in restriction of a right common to all the citizens of the United States, and that no recovery can be had by virtue thereof. The plaintiff, that the bond and description given by the defendant, is not in compliance with the act, and that he had no right to drift with his net in the river Delaware, and moreover that the said act is constitutional, and the provisions therein contained wise and salutary, and greatly beneficial to the community, in preserving a valuable species of fish, which the gilling seines have a tendency to destroy and frighten from our waters. Upon this statement of facts it is agreed to submit this case to the court. If they shall be of the opinion that the defendant was authorized under the act to fish by virtue of his license, or that the act is un constitutional, then that judgment shall be entered for the defendant, with costs; otherwise, that judgment shall be entered in favor of the plaintiff, with costs of suit. And it is further agreed, that the copies of the several acts of the states of Pennsylvania and New Jer sey, relative to fisheries in said river, printed in the pamphlet laws of said states, shall be read in this court,

common right, without placing both the compact and laws in direct contradiction with themselves, To a fishery by claim of common right, there can be no lo cality of township or county-no beginning or ending point-the extent on the shore cannot be defined-the bond to be given is a security for infraction of the law "at such fishery," by command or permission of the owner or occupant of such fishery, by himself or tenant

and could never have been intended to be given by one fishing by common right. The recovery on the bond is contemplated to be against the owner, posses sor, tenant or agent, and a penalty is imposed on any persons who shall fish in the fishery so entered, opposite the river shore included in the description, without the permission in writing of the person owning, possessing and entering the same, words which in their nature exclude claimants by common right, who cannot enter or describe what they cannot own or occupy in their own right. The words of the law, the meaning of the legislature, are too plain to admit of a doubt,

2 Dallas, 143.

† 5 Smith, 7.

Law of 1823, section 16.

1835]

RIGHTS OF FISHERY IN THE RIVER DELAWARE.

131

they can have no other application than to the owners the following clauses of the Constitution of the United of land on the shores of the river to which fisheries States. The eighth section of the first article, grantwere annexed; they were bound to describe and entering Congress power to regulate commerce. To the their fisheries, and give their bond, according to law; by doing so they were secured in the exclusive right of fishery in their own pools opposite their own lands, and acquired the right of using in front of their boundaries gilling seines or drift nets, which were prohibited by the fifth section of the act of 1808. To give any per son any right under the law of 1822, or to avoid the penalties for using gilling seines, he must have, as owner or possessor, a fishery to enter. It would be nugatory to enter and describe what he neither owned, occupied, or claimed in his own or any derivative right. The cass before the court affords as strong an illustration as could be made. The defendant lives in Philadelphia, he owns or claims no part of either shore of the river, which is owned by other persons, from whom he has no permission, yet he enters as his fishery a space of five miles, from Kensington to Fish's point, comprehending both shores. A single observation suffices to show that this is not such a fishery as is contemplated by the law. If the defendant has a right of fishing within these boundaries, under these laws, he takes away the right of fishing opposite to ten miles of land on the shore from the owners, and enables him to sue them for penalties, if they fish within his boundaries. Such a pretension is too extravagant to be supported, and yet if it stops short of it, the provisions of the law cannot be complied with The entry must give him exclusive rights within his boundaries or it gives him none; and if he may so appropriate five miles on each shore, there can be no limits assigned to this fishery when he is no shore owner.

second section of the fourth article, as to the privileges and immunities of citizens of one state in every other state, and the second section of the third article, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction. But the court decided, on great deliberation, that none of these provisions affected the validity of that law. The laws relating to the fisheries are open to the same objections, but they have not been distinctly presented to the court in the argument of this case. We have however thought proper to notice them in order to express our entire assent both to the opinion and the reasoning of Judge Washington. The defendat's counsel have taken another objection to the validity of this law, which though not directly contended to be founded on that provision of the Constitution of the United States which declares, that no state shall pass any law impairing the obligation of contracts, yet must come within it if the ground assumed is correct. They contend that by the principles of the common law, there can be neither by grant or prescription a private right of fishery in an arm of the sea, a navigable river or one in which the tide ebbs and flows. That the right of fishing in such waters is common to all the inhabitants of the state, and is expressly secured to them by a compact with the proprietaries of New Jersey in 1676, and that the legislature cannot prevent the exercise of that common right.*

The Charter of Charles II. to the Duke of York, bounded his grant by the Delaware river and bay,† and comprehended no part of either the grant from him to It is clear then that the defendant is in no better sit- Lords Carteret and Barclay, run by the same bounda uation by having made his entry than before. He had ries, so that the claim of New Jersey to any part of the no antecedent right, and could acquire none by the bay or river below low water mark, cannot be maintainmere forms he has pursued; they were evidently for ed by virtue of these grants. The Charter to William the purpose of evading the laws of New Jersey, which Penn, was bounded on the east by the Delaware, and applied only to riparian owners within the boundaries included no part of the river, the right to the entire bed of their own fisheries, annexed to their land, and duly en- of which remained in the crown till the Revolution, tered. Entertaining no doubt of the meaning and ex- though claimed by the proprietors of New Jersey from press provisions of the law, we have thought it better a very early period. The rights of the crown being to express ourselves in general terms, than to found extinguished by the treaty of peace, those claimed by our opinion on any departure of the defendant's entry New Jersey to the river and bay were thereby confirmfrom the requisitions and forms of the law: being de-ed, unless a better title should be found to exist in cidedly of opinion, that he could not make an entry other states. But these rights accrued to the state in and description in any form or manner which could its sovereign capacity, and not to the proprietaries, they avail him, we have not entered into any examination claiming only by grant, must be confined to its bounof its particulars in description or otherwise. daries, an acquisition after its date could not pass under the charter to the proprietors, it was territory newly acquired under the operation of the treaty, by New Jersey and Pennsylvania, and by them made the subject of the compact between the two states. 1t follows then, that the proprietors in 1676, had no right of either property or fishery in the Delaware, to the common use of which they could grant a right to all the inhabitants of New Jersey, the crown alone could grant a common right of fishery beyond the bounds of the state. The king was no party to a compact made in derogation of his rights, which devolved on the state unimpaired by the unauthorized acts of the proprie tors. The mere fact of their claiming beyond the limits of the charter, could give them no title. Their compact in 1676, could create no right in the inhabitants which restrained or limited the exercise of the powers of sovereignty over the river which the state derived from the paramount title of the crown. A compact between the proprietors and people of a state, is Questions of a similar nature have heretofore occur- a contract, the obligation of which cannot be impaired red in this state. The subject was very fully discussed by a state law, but the one in question was without any in this court in the case of Corfield v. Coryell, which obligatory force in giving the right of fishing in the depended on the validity of the laws regulating oyster Delaware. Its exercise under a claim from the profisheries, and was most thoroughly considered. It was contended in that case, that the law was repugnant to

The case stated admitting that the defendant has made use of a gilling seine in the manner stated, he has directly violated the provisions of the 5th section of the act of 1808, and the 7th section of that of 1822, and is liable to the penalties imposed. He could not make the entry required by the 4th section, and therefore was not authorized under the 6th to use a gilling seine or drift net.

This case then, in our opinion, is clearly within the law, and if the law is valid, our judgment must be for the plaintiff.

Sitting in the Circuit Court, we are bound to decide on the laws of a state precisely as we would if sitting in a state court, 2 Peters, 656. They are the rules of our decision, unless they are repugnant to the constitution, laws, or treaties, of the United States, which are the supreme law of the land, as well in the state as federal courts. Whether these laws are so repugnant, is the next object of our inquiry.

• 4 Washington's Ct. Ct. 371. 7.

Leaming & Spicer, 390.
t4 Wash. C. C. 384.
4 Wash. C. C. 885-6,

prietors was an encroachment on the rights of the crown and the state. The compact was inoperative to confer any right such as is now claimed, although the present laws had never been passed. A repeal of the Jaw would only save the penalty, and the defendant would be still without any right. This clause of the

constitution then cannot avail him.

The constitution of this state adopted the 2d of July, 1776, declares that the government of this province shall be vested in a governor, council, and a general assembly. There is no clause restricting the powers of the government as to the subjects of legislation, no part of it has been relied upon by the counsel of defendant as being inconsistent with their laws in relation to the fisheries in the Delaware, but they rest their alleged unconstitutionality on general principles.

any

In determining what is the law of New Jersey, we must look first to its constitution, which is a supreme law, binding on the legislature itself, and if it contained restraint on the legislative power over fisheries, its obligation would be paramount, but as it contains none, the law which must govern our decision, exists only in the acts of the government, organized by the people, under their constitution. We find its powers plenary, unrestrained, and brought into action by the acts under our consideration, which embrace the case submitted

to law, is one which inflicts a punishment for doing an act innocent at the time of its commission. It is easy to ascertain whether a state law is within this provision. There can be no controversy about the definition of a contract, and if a state law does impair its obligation, it is clearly void. Though it is a very delicate, and has been found a very difficult matter to define the obligation of a contract, or the acts which do impair it, yet there is a fixed and certain standard to which they must be applied, and a definite rule by which to regulate their application. But there is no paramount and supreme law which defines the law of nature, or settles those great principles of legislation which are said to control state legislations in the exercise of the powers conferred on them by the people in the cons itution.If it is once admitted that there exists in this court a Congress have declared in the 34th section of the Ju- power to declare a state law void, which conflicts with diciary Act, that the laws of the several states, except no constitutional provision-if we assume the right to where the constitution, treaties or statutes of the United annul them for their supposed injustice, or oppressive States shall otherwise require or provide, shall be re-operation, we become the makers and not the expoundgarded as rules of decision in trials of common law in ers of constitutions-our opinion will not be a judgment the courts of the United States, in cases where they on what was the pre-existing law of the case, but on apply. what it is after we shall have so amended and modified it as to meet our ideas of justice, policy and wise legislation, by a direct usurpation of legislative powers, and a flagrant violation of the duty enjoined on us by the Judiciary Act. It is therefore not material to the decision of this case, to examine further into the existence of a right of fishery in the Delaware common to all the citizens of this state prior to the passage of the acts in question, since in our opinion the admission of such a right would not avail the defendant, it not being protected by any law paramount to those which have reg ulated or taken it away. A common law right to a common fishery in the Delaware, is to be enjoyed in subordination to the laws which regulate its use. a legitimate subject of legislation, and we cannot probounded constitutional power, the government of New nounce the law void, because in the exercise of an un Jersey have restrained it within limits narrower than those allowed by common law, or common right.Neither do we think it necessary to examine into the extent of the rights of riparian owners in front of their certain extent under the colonial government, which lands. They undoubtedly had rights of fishery to a were recognized by New Jersey and Pennsylvania, by the compact of 1783. It is admitted, that from a very early period of the history of the state, shore fisheries being devised and alienated with, or separate from the have been considered as private property, capable of land to which they were annexed, subject to taxation, The Supreme Court have decided, that though a and taxed as other real estate. It is not pretended that state law is an unwise and unjust exercise of legislative there ever existed a common right of fishery in the citi power-retrospective in its operation-passed in the zens of the state, on or over the lands thus owned to exercise of a judicial function creating a contract be- low water mark, beyond it the states since the treaty tween the parties to a pending suit where none exist- are owners of the river in full sovereignty, to which no ed previous to the law-declaring a contract in exis one could acquire any right but by some law, or grant, tence prior to the law, founded on an immoral or illegal subsequent to its acquisition. The existence of such consideration, to be valid and binding on the parties- law or contract is not pretended, and it cannot be mainor divesting rights which were previously vested in one tained as a legal proposition, that a mere permissive of the parties are neither ex post facto, laws impairing right of fishery is so solemn as to be incapable of rethe obligation of contracts, or repugnant to the Consti-straint or regulation by the sovereign authority of a tution of the United States.

⚫ to us.

We may think the powers conferred by the constitution of this state, too great, or dangerous to the rights of the people, and that limitations are necessary, but we cannot affix them, or act on cases arising under state laws, as if boundaries had been affixed by the constitution previously. We cannot declare a legislative act void, because it conflicts with our opinions of policy, expediency, or justice. We are not the guardians of the rights of the people of a state, unless they are secured by some constitutional provision which comes within our judicial cognizance. The remedy for unwise or oppressive legislation within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights.

It is

state. We can perceive nothing in those laws but the All the decisions of the Federal Courts which have exercise of their legitimate power of sovereignty over declared state laws void, have been founded on their col- its unquestionable domain. The legislature, for rea lision with the constitution, laws, or treaties, of the sons of policy of which they are the sole judges, authorUnited States, or on the provisions of state constitu-ized the owners of those fisheries who have complied tions, but not on the general principles asserted by the defendant's counsel. Were this court now to adopt them, we should disregard the high authority referred to, and submit state laws to a test as fallible and uncer tain as all rules must be which have not their source in some certain and definite standard, which varies neither with times, circumstances or opinions. An ex post fac

with the conditions prescribed in the law, to use gilling seines or drift nets in the Delaware, opposite to their respective fisheries, and to prohibit the use of such seines or nets to all others, under such penalties as were thought sufficient to enforce its provisions. In thus enlarging the private, and restraining the common right of fishery, they have infringed no constitutional injunction; their acts are the law of the state; they ap ply to the case under our consideration, and we are bound to adopt them as the rule of our decision.