2. To the 2d sec. of the 4th art. which declares that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

3. To the 2d sec. of the 3d art. which declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.

In case the act should be considered as not being exposed to these constitutional objections, it is then insisted

Secondly. That the locus in quo was not within the territorial limits of New-Jersey: But if it was, then,

Thirdly. It was not within the jurisdiction of the magistrates of Cumberland county.

Fourthly. We have to consider the objection made by the defendant's counsel to the form of this action.

The first section of the act of New-Jersey declares, that from and after the 1st May till the 1st September, in every year, no person shall rake on any oyster-bed in this state, or gather any oysters on any banks or beds within the same, under penalty of 10 dollars.

2d sec. No person, residing in or out of this state, shall, at any time, dredge for oysters in any of the rivers, bays, or waters of the state, under the penalty of 50 dollars.

The 3d sec. prescribes the manner of proceeding in cases of violations of the preceding sections.

The two next sections have nothing to do with the present case.

The 6th section enacts, that it shall not be lawful for any person, who is not at the time an actual inhabitant and resident of this state, to gather oysters in any of the ri

vers, bays, or waters, in this state, on board of any vessel not wholly owned by some person inhabitant of, or actually residing in, this state; and every person so offending shall forfeit 10 dollars, and shall also forfeit the vessel employed in the commission of such offence, with all the oysters, rakes, &c. belonging to the same.

The 7th section provides, that it shall be lawful for any person to seize and secure such vessel, and to give information to two justices of the county where such seizure shall be made, who are required to meet for the trial of the said case, and to determine the same; and, in case of condemnation, to order the said vessel, &c. to be sold.

The first question then is, whe ther this act, or either section of it, is repugnant to the power grant. ed to congress to regulate commerce? Commerce, with foreign nations, and amongst the several states, can mean nothing more than intercourse with those nations, and among the states, for purposes of trade, be the object of the trade what it may. This intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states,

or by a passage over land through the states where such passage becomes necessary to the commercial intercourse between the states. It is this intercourse which congress is invested with the power of regulating, and with which no state has a right to interfere. But this power, which comprehends the use of, and passage over, the navigable waters of the several states, does. by no means, impair the right of the state governments to legislate upon all subjects of internal po

States, by the power granted to congress to regulate commerce, it is difficult to perceive how a law of the state, regulating the use of this common property, under such penalties and forfeitures, as the state legislature may think proper to prescribe, can be said to interfere with the power so granted. The act under consideration, forbids the taking of oysters by any person, whether citizens or not, at unseasonable times, and with destructive instruments: for breaches of, the law prescribes penalties in some cases, and forfeitures in others. But the free use of the waters of the state, for purposes of navigation and commercial intercourse, is interdicted to no persons; nor is the slightest restraint imposed upon any to buy and sell, or in any manner to trade within the limits of the state.

It was insisted by the plaintiff's counsel, that as oysters constitute an article of trade, a law which abridges the right of the citizens of other states to take them, except in particular vessels, amounts to a regulation of the external commerce of the state. But it is a manifest mistake, to denominate that a commercial regulation, which merely regulates the use of the common property of the citizens of the state, by forbidding it to be taken at improper seasons, or with destructive instruments. The law does not inhibit the buying and selling of oysters after they are lawfully gathered, and have become articles of trade; but it forbids the removal of them from the beds in which they grow, (in which situation they cannot be considered as articles of trade,) unless under the regulations which the law prescribes. What are the

state inspection laws, but internal restraints upon the buying and selling of certain articles of trade? And yet, the chief justice, speaking of those laws, 6 Wheat. 203, observes, that "their object is to improve the quality of articles produced by the labor of a country, to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose." Is not this precisely the nature of those laws which prescribe the season when, and the manner in which, the taking of oysters is permitted? Paving stones, sand, and many other things, are as clearly articles of trade as oysters

but can it be contended that the laws of a state, which treat as tort feasors those who shall take them away without the permission of the owner of them, are commercial regulations?

We deem it superfluous to pur suc this subject further, and close it by stating our opinion to be, that no part of the act under consideration amounts to a regulation of commerce, within the meaning of the 8th section of the 1st article of the constitution.

2. The next question is, whe ther this act infringes that section of the constitution which declares that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states?

The inquiry is, what are the pri vileges and immunities of citizens in the several states? We feel no hesitation in confining these ex pressions to those privileges and immunities which are, in their nature, fundamental-which belong,

of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this union, from the period of their becoming free, independent and sovereign. What these fundamental privileges are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads— protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits or otherwise-to claim the benefit of the writ of habeas corpus-to institute and maintain actions of any kind in the courts of the state-to take, hold and dispose of property, either real or personal and an exemption from higher taxes or impositions than are paid by the other citizens of the state, may be mentioned as some of the particular privileges and immunities of citizens which are already embraced by the general description of privileges deemed to be fundamental;-to which may be added elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities; and the enjoyment of them, by the citizens of each state, in every other state, was manifestly calculated, (to use

the expression of the preamble of the corresponding provision in the old articles of the confederation,) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the union."

But we cannot accede to the proposition which was insisted upon by the counsel, that, under this provision of the constitution, the citizens of the several states are entitled to participate in all the rights which belong exclusively to the citizens of any particular state, merely upon the ground that they are enjoyed by those citizens. Much less, that, in regulating the use of the common property of the citizens of such state, the legislature is bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens.

A several fishery, either as the right to it respects running fish, or such as are stationary, such as oysters, clams and the like, is as much the property of the individual to whom it belongs as dry land or land covered by water, and is equally protected by the laws of the state against the aggressions of others, whether citizens or strangers. When these private rights do not exist, to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the stateit is the property of all, to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants, in common, of this property, and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent or the express permission of the sovereign who has the power to regulate its use.

This power in the legislature of New-Jersey, to exclude the citizens of the other states from a participation in the right of taking oysters within the waters of that state, was denied by the plaintiff's counsel, upon principles of public law, independent of the provision of the constitution which we are considering, upon the ground that they are incapable of being appropriated until they are caught. This argument is unsupported, we think, by authority. Rutherforth, B. I. c. 5. s. 4 and 5, who quotes Grotius as his authority, lays it down, that although wild beasts, birds and fishes, which have not been caught, have never, in fact, been appropriated, so as to separate them from the common stock, to which all men are equally entitled; yet, where the exclusive right in the water and soil which a person has occasion to use in taking them, is vested in others, no other person can claim the liberty of hunting, fishing, or fowling, on land or waters which are so appropriated. "The sovereign," says Grotius, b. 2. c. 2. s. 5, "who has dominion over the land or waters, in which the fish are, may prohibit foreigners, [by which expression we understand him to mean others than subjects or citizens of the state,] from taking them."

That this exclusive right of taking oysters in the waters of NewJersey, has never been ceded by that state, in express terms, to the United States, is admitted by the counsel for the plaintiffs-and having shown, as we think we have, that this right is a right of property, vested either in certain individuals or in the state, for the use of the citizens thereof, it would, in our opinion, be going quite too far, to

construe the grant of privileges and immunities of citizens, as amounting to a grant of a cotenan cy in the common property of the state, to the citizens of all the other states. Such a construction would, in many instances, be productive of the most serious public inconve nience and injury, particularly in regard to those kinds of fish, which, by being exposed to too general use, may be exhausted. The oyster beds belonging to a state, may be abundantly sufficient for the use of the citizens of that state, but might be totally exhausted and destroyed, if the legislature could not so regulate the use of them, as to exclude the citizens of the other states from taking them, except under such limitations and restrictions as the laws may prescribe.

3d. It is lastly objected, that this act violates that part of the constitution, which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. The taking of oysters out of season, and with destructive instruments, such as dredges, is said to be an offence against the ancient ordinances and statutes of the admiralty, and that it is punished by the admiralty as a misdemeanor. The authority relied upon to estab lish this doctrine, is one of sir L. Jenkins' charges, to be found in the 2d vol. of Brown's C. and A. Law, p. 475.

The amount of the argument is, that some offences of this kind, are cases of admiralty and maritime jurisdiction. The laws of a state upon the same subject, vesting in the same tribunals jurisdiction over them, are repugnant to this grant of jurisdiction to the judiciary of the United States.

This argument, we think, can