ARGUMENT OF JOHN S. EWAET. 1395 



this Commonwealth ' ; and it was passed, we think, for the preserva- 

 tion of the fish, and it makes no discrimination in favor of citizens 

 of Massachusetts and against citizens of other States. If there be a 

 liberty of fishing for swimming fish in the navigable waters of the 

 United States, common to the inhabitants or the citizens of the 

 United States, upon which we express no opinion, the statute may 

 well be considered as an impartial and reasonable regulation of this 

 liberty; and the subject is one which a State may well be permitted 

 to regulate within its territory, certainly in the absence of any regu- 

 lation by the United States. The preservation of fish, even although 

 they are not used as food for human beings, but as food for other fish 

 which are so used, is for the common benefit; and we are of opinion 

 that the statute is not repugnant to the Constitution and the laws of 

 the United States." 



You will see, Sirs, that both Courts assumed that there is a common 

 right on the part of all citizens of the United States to fish, and on 

 that assumption the question was, whether the individual State had 

 power to regulate. The decision in both cases is that it had. 



The latter of the cases was affirmed in the Supreme Court of the 

 United States, but there is nothing in the opinions delivered which 

 will be useful upon this occasion. It is reported in 139 United 

 States Reports at p. 240. 



Having now finished what I have to say as to the treaty of 1783, 

 and as to what could be done in the way of concurrence or consent 

 under the operation of it, I think I will, at this stage and before 

 taking up the treaty of 1818, point out what regulations were made 

 between those dates. I precede that with the observation that if 

 Great Britain had believed that the treaty of 1783 limited her sov- 

 ereignty she would have acted upon that idea; would have applied 

 to the United States for concurrence and consent; and would not, 

 nor would the Colonial Legislatures, have gone on enacting the laws, 

 which were from time to time passed, and which remained in force 

 without objection from the United States. 



The first statute to which I refer is the statute of 1786 (British 

 Case Appendix, p. 558), with which the Tribunal is very familiar. 

 It regulated the mesh of nets, referred to the desertion of fishermen, 

 and had other provisions that I need not trouble about now. Then 

 came the Lower Canadian statute of 1788 (British Case Appendix, 

 p. 592), which contained a provision that is in a great many of these 

 statutes as to casting anchor so as to interfere with nets ; the impo- 

 sition of one net over another; the disposal of offal it is altogether 

 a very comprehensive statute. Then, in 1793, came the New Bruns- 

 wick statute (British Case Appendix, p. 595), which prohibited the 

 placing of nets across rivers, coves and creeks, and gave justices the 

 power of removal. In 1807 there was a Lower Canadian statute 

 (British Case Appendix, p. 601), which prohibited the throwing 

 out of ballast in the harbours; prohibited the use of nets in such a 



