PLEADINGS. 219 



terest of the State that the legislature should, by every legal and rea- 

 sonable means, in those matters over which it has jurisdiction, provide 

 for the community, so that it may obtain good and healthy food at the 

 lowest possible prices. 



The true theory of government, mindful of the welfare of the gov- 

 erned, is to direct and provide such laws and regulations as will effect 

 the greatest good to the greatest number. 



This appears to be one of the cases in which it should so act that, by 

 prohibiting the trap-fishing, although, perhaps, to the detriment of a 

 few who have embarked their property in an enterprise from which they 

 have already received ample compensation, and have continued to invest 

 regardless of the results of the movements to stop it, the legislaure will 

 open to the whole community a free fishery, and afford emi^loyment to 

 an infinitely larger number of men who are obliged now to seek other 

 avocations for a livelihood, and occupy branches of industry that could 

 be tilled by others who are seeking employment without success, by 

 reason of the pre-occupation. Further, from public policy no business 

 should be encouraged by a State whereby a large amount of food is de- 

 stro,yed or carried beyond the reach of the community when such food 

 is required for its support. 



Upon such ground the nse of grain, in times of scarcity or appre- 

 hended scarcity, for conversion into spirits, has, at various times, been 

 prohibited. 



RIGHTS UNDER THE CHARTER AND CONSTITUTION — JURISDICTION OF 



THE UNITED STATES. 



One of the reasons upon which I find the remonstrants claim the right 

 to trap fish without restriction is based upon constitutional grounds, 

 and upon the rights originally granted under the charter of Charles II. 



It is undoubtedly true that the United States, as contradistinguished 

 from an individual State, have, by the powers conceded to it by the sev- 

 eral States, exclusive control and civil jurisdiction over the tide-waters^ 

 but it is only in questions involving the rights of commerce, post-roads, 

 and navigation ; and all its powers over the tide-waters arise under and 

 as incidental to the right to regulate commerce and navigation, and to 

 make post-roads, but under no other authority nor for any other purpose. 



"It is admitted * * that the States may by law regulate the 

 use of fisheries and oyster-beds within their territorial limits, though 

 upon the navigable waters, provided the free use of the waters for pur- 

 poses of navigation and commercial intercourse be not interrupted.^ 

 (Kent, Com., I, p. 439.) 



Upon this construction Massa(;husetts has passed laws prohibiting 

 seining in her bays and rivers, and regulating the taking of fish. Con- 

 necticut has exercised the same right. 



Our own State has assumed the same in prohibiting and regulating 

 the fisheries in parts of our bay, as at Wickford for instance, and also 

 in Seekonk Eiver and elsewhere, and i>articnlarly as respects oysters, 

 and the right has never been questioned. 



In respect to the jurisdiction over the waters on the coast, if I under- 

 stand the common law, it is that the jurisdiction extends to a marine 

 league, or three miles, from and beyond a line drawn from headland to 

 headland. Beyond that is what is termed the high seas, and there the 

 General Government has exclusive and unlimited jurisdiction over 

 every question that could arise there. 



In the case, Tlie City of New York v. Melis, (11 Peters, 102,) it is stated 

 as settled that — 



