1. Subject to the paramount right of navigation, the regulation
of which in relation to foreign and interstate commerce has been
granted to the United States, each state owns the beds of all
tidewaters within its jurisdiction, and may appropriate them, to be
used by its citizens as a common for taking and cultivating fish,
if navigation be not thereby obstructed.
2. The right which the citizens of the state thus acquire is a
property right, and not a mere privilege or immunity of
citizenship.
3. The second section of the fourth article 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," does not vest the citizens of one state with any interest
in the common property of the citizens of another state.
4. A law of Virginia by which only such persons as are not
citizens of that state are prohibited from planting oysters in the
soil covered by her tidewaters is neither a regulation of commerce
nor a violation of any privilege or immunity of interstate
citizenship.
McCready, a citizen of Maryland, was indicted, convicted, and
fined $500, in the Circuit Court of Gloucester County, Va., for
planting oysters in Ware River, a stream in which the tide
Page 94 U. S. 392
ebbs and flows, in violation of sec. 22 of the Act of the
Assembly of Virginia approved April 18, 1874, c. 214, p. 243,
Sess.Acts 1874. That section is as follows:
"If any person other than a citizen of this state shall take or
catch oysters or any shellfish in any manner, or plant oysters in
the waters thereof or in the Rivers Potomac or Pocomoke, he shall
forfeit $500, and the vessel, tackle, and appurtenances."
The supreme court of appeals of the state affirmed the judgment
below, whereupon the defendant sued out this writ of error.
Page 94 U. S. 394
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The precise question to be determined in this case is whether
the State of Virginia can prohibit the citizens of other states
from planting oysters in Ware River, a stream in that state where
the tide ebbs and flows, when its own citizens have that
privilege.
The principle has long been settled in this Court that each
state owns the beds of all tidewaters within its jurisdiction
unless they have been granted away.
Pollard's
Lessee v. Hagan, 3 How. 212;
Smith v.
Maryland, 18 How. 74;
Mumford v.
Wardwell, 6 Wall. 436;
Weber v.
Harbor Commissioners, 18 Wall. 66. In like manner,
the states own the tidewaters themselves and the fish in them so
far as they are capable of ownership while running. For this
purpose, the state represents its people, and the ownership is that
of the people in their united sovereignty.
Martin
v. Waddell, 16 Pet. 410. The title thus
Page 94 U. S. 395
held is subject to the paramount right of navigation, the
regulation of which in respect to foreign and interstate commerce
has been granted to the United States. There has been, however, no
such grant of power over the fisheries. These remain under the
exclusive control of the state, which has consequently the right,
in its discretion, to appropriate its tidewaters and their beds to
be used by its people as a common for taking and cultivating fish
so far as it may be done without obstructing navigation. Such an
appropriation is in effect nothing more than a regulation of the
use by the people of their common property. The right which the
people of the state thus acquire comes not from their citizenship
alone, but from their citizenship and property combined. It is, in
fact, a property right, and not a mere privilege or immunity of
citizenship.
By Art. IV, Sec. 2, of the Constitution, the citizens of each
state are "entitled to all privileges and immunities of citizens in
the several states." Mr. Justice Washington, in
Corfield v.
Coryell, 4 Wash.C.C. 380, thought that this provision extended
only to such privileges and immunities as are "in their nature
fundamental; which belong of right to the citizens of all free
governments." And Mr. Justice Curtis, in
Scott
v. Sandford, 19 How. 580, described them as such
"as belonged to general citizenship." But usually, when this
provision of the Constitution has been under consideration, the
courts have manifested the disposition, which this Court did in
Conner v.
Elliott, 18 How. 593, not to attempt to define the
words, but "rather to leave their meaning to be determined in each
case upon a view of the particular rights asserted or denied
therein." This clearly is the safer course to pursue, when, to use
the language of Mr. Justice Curtis in
Conner v.
Elliott,
"we are dealing with so broad a provision, involving matters not
only of great delicacy and importance, but which are of such a
character that any merely abstract definition could scarcely be
correct, and a failure to make it so would certainly produce
mischief."
Following, then, this salutary rule and looking only to the
particular right which is here asserted, we think we may safely
hold that the citizens of one state are not invested by this clause
of the Constitution with any interest in the common property of the
citizens of another state. If Virginia had by
Page 94 U. S. 396
law provided for the sale of its once vast public domain, and a
division of the proceeds among its own people, no one, we venture
to say, would contend that the citizens of other states had a
constitutional right to the enjoyment of this privilege of Virginia
citizenship. Neither if, instead of selling, the state had
appropriated the same property to be used as a common by its people
for the purposes of agriculture, could the citizens of other states
avail themselves of such a privilege. And the reason is obvious:
the right thus granted is not a privilege or immunity of general,
but of special, citizenship. It does not "belong of right to the
citizens of all free governments," but only to the citizens of
Virginia on account of the peculiar circumstances in which they are
placed. They and they alone owned the property to be sold or used,
and they alone had the power to dispose of it as they saw fit. They
owned it not by virtue of citizenship merely, but of citizenship
and domicile united -- that is to say, by virtue of a citizenship
confined to that particular locality.
The planting of oysters in the soil covered by water owned in
common by the people of the state is not different in principle
from that of planting corn upon dry land held in the same way. Both
are for the purposes of cultivation and profit, and if the state,
in the regulation of its public domain, can grant to its own
citizens the exclusive use of dry lands, we see no reason why it
may not do the same thing in respect to such as are covered by
water. And as all concede that a state may grant to one of its
citizens the exclusive use of a part of the common property, the
conclusion would seem to follow that it might by appropriate
legislation confine the use of the whole to its own people
alone.
Neither do we think this case is at all affected by the clause
of the Constitution which confers power on Congress to regulate
commerce. Art. I, Sec. 8. There is here no question of
transportation or exchange of commodities, but only of cultivation
and production. Commerce has nothing to do with land while
producing, but only with the product after it has become the
subject of trade. Virginia, owning land under water adapted to the
propagation and improvement of oysters, has seen fit to grant the
exclusive use of it for that purpose to the citizens of
Page 94 U. S. 397
the state. In this way, the people of Virginia may be enabled to
produce what the people of the other states cannot; but that is
because they own property which the others do not. Their
productions do not spring from commerce, but commerce to some
extent from them.
We are unable to agree with the counsel for the plaintiff in
error in his argument that the right of planting may be enforced as
a privilege of interstate citizenship, even though that of taking
cannot. Planting means, in "oysterman's phraseology," as counsel
say, "depositing with the intent that the oysters shall remain
until they are fattened." The object is therefore to make use of
the soil and the water above it for the improvement and growth of
that which is planted. It is this use, as has already been seen,
that the state has the right, by reason of its ownership, to
prohibit.
Judgment affirmed.