220 REPOET OT^»Mx\IISSIONER OF FISH AND FISHERIES. 



"All those powers which relate to merely municipal legislatiou, or which 

 may be properly called internal police, are not surrendered by the State 

 or restrained, and consequently in relation to those the authority of a 

 State is complete, unqualified, and exclusive." 



In case Fuller v. Spear, (2 Shepley, 417,) Weston, Chief Justice, gave 

 the opinion of the court, and stated : 



" It is undoubtedly competent for the legislative power," (meaning State 

 legislative power,) "as well in these as in other waters, to approj^riate 

 and regulate fisheries otherwise public." 



It would appear from these authorities as well settled that the State 

 has the exclusive and unlimited authority to regulate the fisheries within 

 its waters. 



Any claim to exercise the right of fishing founded upon the charter 

 of Charles II is derived from the following words : 



"But they and every, or any of them, shall have full and free power 

 find liberty to continue and use the trade of fishing upon the said co;ist, 

 iu any of the seas thereunto adjoining, or any arms of the seas or salt- 

 water rivers and creeks, where they have been accustomed to fish," &c. 



After summing up and specifying the different kinds of grants, among 

 which are "rivers, waters, fishing," the habendum is as follows: 



"To have and to hold the same uuto the said governor and company, 

 and their successors," (which is now the State iu respect to such ques- 

 tions,) "forever, upon trust, for the use and benefit of themselves and 

 their associates, freemeu of the said colony, their heirs and assigns, to 

 be holdeu of us, our heirs and successors, as of the manor of East Green- 

 wich, in our county of Kent, in free and common soccape, and not iu capite 

 nor by knight-service." 



Soccage is an old English term, now obsolete, and is understood to be 

 "a tenure of lands for certain inferior or husbandry services to be per- 

 formed for the lord of the fee." Free soccage is defined, where the serv- 

 ices are not only certain but honorable, and means the same as if written 

 free and common tenure or tenancy ; that is to say, that the governor and 

 company, and associates, freemen of the colony, were all free tenants in 

 common of the " rivers, umters, and fishing,'''' 



The constitution of the State adopted N^ovember 5, 1842, contains in 

 its seventeenth section of Article I this provision : 



"The people shall continue to enjoy and freely exercise all the rights 

 of fishing and the privileges of the shore to which they have been here- 

 tofore entitled under the cliarter and usages of this State. But uo new 

 right is intended to be granted, nor any existing right impaired, by this 

 declaration." 



By this provision, then, no new rights are granted nor existing ones 

 impaired, and the people shall continue to enjoy and freely exercise all 

 the rights of fishing, as under the charter and usages. 



As to the manner of exercising these rights, we presume it is the un- 

 questionable right of the State to determine that no one has a right to 

 fish in such a manner as will be detrimental to others ; that each citi- 

 zeu has the same and an equal right (though it may remain unexercised) 

 as another, but no more nor no less. Wlioever takes fish must have some 

 consideration for the rights of others ; at least, if having been allowed to 

 take more than his share, and uo objection had been made to it for many 

 years, yet when objection is made, and such objection is reasonable 

 and based upon suflicieut grounds, he ought to cease the offensive mode. 



This is tlie state of things at present. And upon the petitioners 

 coming in and asking, for the reason shown, that the legislature shall 

 stop a mode of fishing by which they are enabled to take not only uiore 



