ARGUMENT OF JOHN S. EWAKT. 1393 



that it is still in force, says that ' the preservation of the spawn, fry 

 or brood of fish, has been for centuries a favourite subject of leoisla- 

 tion, and the statutes passed for the purpose are extremely numerous.' 

 Certainly, similar acts, made upon similar considerations of expe- 

 diency, and tending to preserve and secure the common right, have 

 been frequent here, as well under the colonial and provincial govern- 

 ments, as under that of our present constitution. Anc. Chart. 

 114,254. 



" The statute upon which this action is founded, being apparently 

 made to prohibit a mode of fishing which might tend to interrupt 

 the access of the fish to their spawning places or otherwise tend to 



the injury of the fishery by the use of a destructive mode of 

 841 taking them, of which the legislature are to judge, the court 



are of opinion, that it is a constitutional and valid act. and 

 that the defendant, having violated its provisions, is liable for its 

 penalties." 



Then the learned Judge proceeds to discuss the contention that the 

 United States enrolment of the vessel gives privileges, and he holds 

 that it does not affect the present question. 



Skipping that paragraph, and going on to the next, I continue : 



" In recurring to the defendant's answer, it will be perceived that 

 he lays great stress upon the facts, that at the time of the alleged 

 seining he was an inhabitant of another State, that he was master and 

 part-owner of a fishing vessel, enrolled in conformity with the laws 

 of the United States, and he insists on this ground so earnestly, that 

 it would seem that he and his legal advisers considered it the main 

 ground of defence. At first we were lead, from this statement of 

 defence, to suppose that this act, like some others which have been 

 passed in this commonwealth, contained provisions, prohibiting or 

 impeding the citizens and inhabitants of other States in the enjoy- 

 ment of rights and privileges allowed to our own citizens. But upon 

 recurring to the act, it is clear that there are no discriminating pro- 

 visions in favor of the citizens of this commonwealth, but that all 

 the restraints and prohibitions of the statute operate in precisely the 

 same manner on citizens of the Commonwealth and those of other 

 States. We may fairly presume, therefore, that these enactments 

 were all designed to preserve and improve the fishery, for the benefit 

 of any and all persons entitled to enjoy the advantages of it. And 

 surely these inhabitants of other states, who come within the terri- 

 torial limits of this state, and thereby owe a temporary allegiance, 

 and become amenable to its laws, have no just reason to complain, 

 if, when within those limits, and enjoying benefits in common with 

 our own citizens, they are bound to conform to a salutary law, nec- 

 essary for the common good. It deprives them of no benefit or priv- 

 ilege which the constitution and laws of the United States could 

 give, or do profess to give them that of a free navigation in and 

 over all the navigable waters of the State." 



The learned Judge then proceeds to save himself from the implica- 

 tion that if the laws were discriminatory they would be ultra vires," 

 and he says that the point I have referred to as being still undecided 



