220 REPORT OF COMMISSIONER OF FISH AND FISHERIES. 



''All those powers which relate to merely municipal legislation, or which 

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

 or restrained, and consequently in relation to tho.se the authority of a 

 State is complete, unqualified, aiul exclusive." 



In case Fuller. r. 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 appropriate 

 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 fislieries 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 

 nnd liberty to continue and use the trade of fishing upon tlie said cojist, 

 in 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 S[)ecifying the different kinds of grants, among 

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



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

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

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

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

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

 wich, in our county of Kent, in free and common soaccuje, and not in 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, waters, and fishing J^ 



The constitution of the State adopted November 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 charter and usages of this State. But no 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- 

 zen has the same and an eipial right (though it may remain unexercised) 

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

 consideration for tlu^. rights of others ; at least, if having been allowed to 

 take more than his share, and no objection had been made to it for many 

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

 and based u[)()n sufficient grounds, he ought to cease the offensive mode. 



This is the state of things at present. Aiul upon the petitioners 

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

 stop a mode of fishing by wliicli they are enabled to take not only more 



