1392 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



And, in the fourth place, the question of the right of Massachusetts 

 to make discriminatory laws is reserved. 



The case arose in connection with a Massachusetts law which pro- 

 hibited fishing within 1 mile of the shore. The defendant was a citi- 

 zen of Rhode Island, and at the beginning of his opinion Chief Jus- 

 tice Shaw discusses State ownership and regulation. He continues 

 that discussion down to the end of the first paragraph on the second 

 page, which he sums up as follows : 



" The Court are therefore of opinion that the right to the fisheries, 

 and the power to regulate the use of the fisheries on the coasts and in 

 the tide waters of the State, are left, in the distribution of powers be- 

 tween the general and State Governments, with the States, subject 

 only to such powers as Congress may justly exercise in the regula- 

 tion of commerce, foreign and domestic. That the exercise of both 

 of these are not inconsistent, and therefore not in conflict with each 

 other, was also settled by the Supreme Court of the United States in 

 the case of Willson v. Blackbird Creek Marsh Co., 2 Pet. 245. 



" Supposing then that the State, in its sovereign capacity, has full 

 dominion and authority over the sea-shores of the State, is it within 

 the legitimate authority and constitutional power of the State Gov- 

 ernment, when such fisheries are left open for common use, to make 

 and enforce laws designed to regulate the common use and enjoyment 

 of the right of fishing, so as to preserve, enlarge and increase the 

 benefit and profit of such fisheries? 



" Upon such a question, which seems sufficiently plain, it may be 

 well to look once more to those early authorities, to which we have 

 been accustomed to look with respect, for the sources of our civil and 

 social rights. Vattel, Bk. 1, 246. This venerable writer says : ' In 

 virtue or the same authority [i. e. the dominion and power which 

 every independent government has over all things within its terri- 

 torial limits] the sovereign may make laws to regulate the manner 

 in which common property is to be used.' ' Thus, the sovereign may 

 establish wise laws with respect to hunting and fishing, forbid them 

 in seasons of propagation, prohibit the use of certain nets, and of 

 every destructive method, &c.' I cite this authority the rather be- 

 cause it not only clearly announces the general principle, but illus- 

 trates it by the specific point in question. 



"The general rule, that the legislature have power to regulate the 

 use and enjoyment of public and common rights, is founded on the 

 plainest principle of fitness, and well established by authority. And 

 it is for the constituted authorities of the State to determine what 

 regulations of this character will best promote the public and com- 

 mon benefit. In the case of Bennett v. Boggs, Bald. 60, it was held, 

 that a law of Delaware, prohibiting the use of a gilling net in tide 

 waters, within the limits of the State, was valid, and that the legis- 

 lature had power to regulate the fisheries in the Delaware, by pro- 

 hibiting the exercise of a common law right. Indeed the laws in- 

 tended to preserve fisheries by protecting fish in reaching their 

 spawning places, and securing them there, are very numerous, both 

 in England and in this country. In a very recent case, Mayor &c. 

 of Maldon v. Woolvet, 12 Ad. & El. 13, Lord Denman, in commenting 

 on a statute of 13 E,, 2, c. 19, and declaring the opinion of the Court 



