260 
BULLETIN OF THE UNITED STATES FISH COMMISSION. 
extent considered by the Department, and it was beld in its decision of May 23, 1888 (S.8856), that 
mackerel “ caught in twine nets attached to the shore, straight line,” were not entitled to entry under 
the act. 
In its decision of May 26, 1888 (S. 8864), the definition given by the Commissioner of Fish and 
Fisheries as to the shore line referred to in said act, and as to the design of the act with respect to 
traps and weirs, was promulgated for the information and guid.ance of collectors. The questions now 
raised by Mr. Crowell relate to the authority of the States over navigable waters within their bound- 
aries, and I would respectfully request a return of the letter, with an expression of your views 
thereon, at your earliest convenience. 
[Solicitor of the Treasury to the Secretary of the Treasury, May 28, 1889.] 
I am in receipt of a letter addressed to this office by Assistant Secretary Tichenor, under date of 
the 13th instant, requesting an expression of my views of the question raised by Mr. Crowell touching 
the authority of the States over navigable waters within their boundaries. 
The inquiry is propounded on behalf of the Net Fishermen's Association, who are engaged in 
fishing with traps and weirs, as to the meaning of that part of the act of February 28, 1887, relating 
to the importing and landing of mackerel caught during the spawning season, which reads as follows; 
Provided, however, That nothing in this act shall be held to ai^lJly to mackerel caught with liook and line from boats 
and landed in said boats, or in traps or weirs connected with the shore. 
The object of the statute is to prohibit the importation into the United States of all mackerel, 
other than the Spanish mackerel, caught between the 1st day of March and the 1st day of June, 
inclusive, of each year for five years from and after the 1st day of March, 1888. The intention of the 
proviso quoted above is iufereutially a recognition of the reserved rights of the States over their 
navigable waters and fisheries, but it is not readily perceived why the conditions touching the mode 
of fishing should be imposed, if intended to a^iply to such waters. 
The grant of Congress to regulate commerce on the navigable waters of the several States con- 
tains no cession of territory or of public or private property; and the States may, by law, regulate 
the use of fisheries and oyster beds within the territorial limits, though upon navigable waters, 
provided the free use of the waters for purjioses of iiavigatiou and commercial intercourse be not 
interrupted. (1 Kent Com., p. 439.) 
The shores of navigable waters and the soils under them were not granted by the Constitution 
to the United States, but were reserv^ed to the States respectively ; and the new States have the same 
rights, sovereignty, and jurisdiction over this subject as the origin.al States. (3 How., 212; 12 Id., 443.) 
Title to land under water, and to the shore below ordinarily high-water mark, in navigable 
rivers and arms of the sea, was by the common law vested in the sovereign (94 U. S., p. 324) ; but 
since the decision in the Genesee Chief (12 How., 443), declaring all the great lakes and rivers of 
the country navigable that are so in fact, there is no longer any reason for thus restricting the 
title of the State, excex>t as a change might interfere with vested rights and established rules of [trop- 
erty. (94 U. S., 324.) 
In this case the Supreme Court refer to the rule adopted in Iowa as the true one, namely, that 
the bed of the Mississiirxri River and its banks to high-water mark belong to the State, and that the 
title of riparian proxrrietors extends only to that line. Such beds and the maritime borders of States 
are held in some sense in trust for the enjoyment of certain public rights, among which is the common 
liberty of taking fish, .and the State may regulate the mode of that enjoyment so as to prevent the 
destruction of the fishery and secure the xnivilege of its own citizens. This power results from the 
ownership of the soil, from the legislative jurisdiction of the State over it, and from its duty to 
preserve unimpaired those public uses for which the soil is held. (18 How., 71; 94 U. S., 391; 16 Pet., 
367; 15 How., 426.) 
Theyw.s privatum of each State in its tide waters is subject to theyas piMicum of the United States. 
(Aug. T. AV., pp. 65, 160. ) 
The part of the sea which is not within the body of a county or the fauces terrw is considered 
as the “main sea” or ocean, and such is the interpretation of the words “high seas” in the penal code 
of the United States. (Aug. T. AV., p. 4; 5 AA'heat., 76.) 
The seashore, or Utus maris, is understood to be the margin of the sea in its usual and ordinary 
state, and when the sea is full the margin is high-w.ater mark. The seashore is, therefore, all the 
ground between the ordinary high-water m.ark and low- water mark. (Aug. T. AA'., p. 71 ; 6 Mass., 435.) 
