Bennett v. Boggs

3 F. Cas. 221

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: April 15, 1830
• Status: Published

Opinion

BALDWIN, Circuit Justice.

Two questions are submitted to the court: 1. Whether under the laws of this state the defendant has a right to fish with a gilling seine or drift net in any part of the river Delaware, within the boundaries specified in the description of his fishery; 2. If he has not such right, whether these laws are constitutional.

The definition of a pool, or fishing place, in the third section of the act of 1808, which is still in force, enables us to ascertain the true object and meaning of the law in requiring every owner or possessor of a fishery on the Delaware, to describe his pool or fishing place according to the fourth section of the act of 1822. Connecting the proviso in the compact of 1783 with the third section of the law of 1808, and the fourth section of that of 1822, we can have no doubt of the meaning of the legislature in every part of the law. The compact authorizes the guarding of fisheries on the river annexed to the respective shores, against interruptions by persons fishing under claim of common right on the river; thus making a plain distinction between a fishery annexed to the shore, and a fishery by common right on the river. The words, fishery, pool, or fishing place, as defined in the act of 1808, can apply only to a place on the shore to which a fishery is annexed, and there can be no pool or fishery in reference to fishing by claim of common right on the river. A person thus fishing can be in no sense the owner or possessor of a fishery; there can be no pool or fishing place which is his by any other right than what is common to all the inhabitants of the state; it cannot be that fishery intended by the compact, and be guarded against the claim of common right, without placing both the compact and laws in direct contradiction with themselves. To a fishery by claim of common right there can be no locality of township or county — no beginning or ending point — the extent on the shore cannot be defined: the bond to be given is a security for infraction of the law “at such fishery” by command or permission of the owner or occupant of such fishery, by himself or tenant — and could never have been intended to be given by one fishing by common right. The recovery on the bond is contemplated to be against the owner, possessor, tenant or agent, and a penalty is imposed on any persons who shall fish in the fishery so entered, opposite the river shore included in the description, without the permission in writing of the person owning, possessing and entering the same; words which in their nature exclude claimants by common right, who cannot enter or describe wliat they cannot own or occupy in their own right. The words of the law, the meaning of the legislature, are too plain to admit of a doubt; they can have no other application than to the owners of land on the shores of the river to which fisheries were annexed; they were bound to describe and enter their fisheries, and give their bond, according to law. By doing so they were secured in the exclusive right of fishery in their own pools, opposite their own lands, and acquired the right of using in front of their boundaries gilling seines or drift nets, which were prohibited by the fifth section of the act of 1808. To give any person any right under the law of 1822, or to avoid the penalties for using gilling seines, he must have, as owner or possessor, a fishery to enter. It would be nugatory to enter and describe what he neither owned, occupied, or claimed in his own or any derivative right. The case before the court affords as strong an illustration as could be made. The defendant lives in Philadelphia, he owns or claims no part of either shore of the river, which is owned by other persons; from whom he has no permission; yet he enters as his fishery a space- of five miles, from Kensing-ton to Fish’s Point, comprehending both shores. A single observation suffices to show that this is not such a fishery as is contemplated by the law. If the defendant has a right of fishing within these boundaries, under these laws, he takes away the right of fishing opposite to ten miles of land on the shore from the owners, and enables him to sue them for penalties, If they fish within his boundaries. Such a pretension is too extravagant to be supported, and yet if it stops short of it, the provisions of the law cannot be complied with. The entry must give him exclusive rights within his boundaries, or it gives him none; and if he may so appropriate five miles on each shore, there can be no limits assigned to this fishery when he is no shore owner. It is clear then that the defendant is in no better situation by having made his entry than before. He had no antecedent right, and could acquire none by the mere forms he has pursued; they were evidently for the purpose of evading the laws of New Jersey, which applied only to riparian owners within the boundaries of their own fisheries, annexed to their land, and duly entered. Entertaining no doubt of the meaning and express provisions of the law, we have thought it better to express ourselves in general terms, than to found our opinion ou any departure of the defendant’s entry from the requisitions and forms of the law: being decidedly of opinion that he could not make an entry and description in any form or manner which could avail him, we have not entered into any examination of its particulars in description or otherwise. The case stated admitting that the defendant has made use of a gilling seine in the manner stated, he has directly violated the provisions of the fifth section of the act of 1808, and the seventh section of that of 1S22, and is liable to the penalties imposed. He could not make the entry required by the fourth section, and therefore was not authorized under the sixth to use a gilling seine or drift net. This case then, in our opinion, is clearly within the law, and if the law is valid, our judgment must be for the plaintiff.

Sitting in the circuit court, we are bound to decide on the laws of a state precisely as we would if sitting in a state court. [Wilkinson v. Leland,] 2 Pet [27 U. S.] 656. They are the rules of our decision, unless they are repugnant to the constitution, laws or treaties of the United States, which are the supreme law of the land, as well in the state as federal courts. Whether these laws are so repugnant, is the next object of our inquiry.

Questions of a similar nature have heretofore occurred in this state. The subject was very fully discussed in this court in the case of Corfield v. Coryell, [Case No. 3,230,] which depended on the validity of the laws regulating oyster fisheries, and was most thoroughly considered. It was contended in that case that the law was repugnant to the following clauses of the constitution of the United States: the eighth section of the first article, granting congress power to regulate commerce; to the second section of the fourth article, as to the privileges and immunities of citizens of one state in every other state; and the second section of the third article, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction. But the court decided, on great deliberation, that none of these provisions affected the validity of that law. The laws relating to the fisheries ari-open to the same objections, but they have not been distinctly presented to the court in the argument of this case. We have, however, thought proper to notice them, in order to express our entire assent both to the opinion and the reasoning of Judge Washington. The defendant’s counsel have taken another objection to the validity of this law, which, though not directly contended to be founded on that provision of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, yet must come within it if the ground assumed is correct. They contend that, by the principles of the common law, there can be, neither by grant or prescription, a private right of fishery in an arm of the sea, a navigable river, or one in which the tide ebbs and flows; that the right of fishing in such waters is common to all the inhabitants of the state, and is expressly secured to them by a compact with the proprietaries of New Jersey in 1676; and that the legislature cannot prevent the exercise of that common right. Learning & S. 390.

The charter of Charles II. to the Duke of York, hounded his grant by the Delaware river and bay, [Corfield v. Coryell, supra,] and comprehended no part of either; the grant from him to Lords Carteret and Barclay ran by the same boundaries, so that the claim of New Jersey to any part of the bay or river below low water mark, cannot be maintained by virtue of these grants. The charter to William Penn was bounded on the east by the Delaware, and included no part of the river, the right to the entire bed of which remained in the crown till the Revolution, though claimed by the proprietors of New Jersey from a very early period. 4 Wash. C. C. 385, 386. [Corfield v. Coryell, Case No. 3,230.] The rights of the crown being extinguished by the treaty of peace, those claimed by New Jersey to the river and bay were thereby confirmed, unless a better title should be found to exist in other states. But these rights accrued to the state in its sovereign capacity, and not to the proprietaries; they claiming only by grant, must be confined to its boundaries; an acquisition after its date could not pass under the charter to the proprietors; it was territory newly acquired, under the operation of the treaty, by New Jersey and Pennsylvania, and by them made the subject of the compact between the two states. It follows, then, that the proprietors in 1676 had no right of either property or fishery in the Delaware, to the common use of which they could grant a right to all the inhabitants of New Jersey; the crown alone could grant a common right of fishery beyond the bounds of the state. The king was no party to a compact made in derogation of his rights, which devolved on the state unimpaired by the unauthorized acts of the proprietors. The mere fact of their claiming beyond the limits of the charter could give them no title. Their compact in 1676 could create no right in the inhabitants which restrained or limited the exercise of the powers of sovereignty over the river, which the state derived from the paramount title of the crown. A compact between the proprietors and people of a state is a contract, the obligation of which cannot be impaired by a state law, but the one in question was without any obligatory force in giving the right of fishing in the Delaware. Its exercise under a claim from the proprietors, was an encroachment on the rights of the crown and the state. The compact was inoperative to confer any right such as is now claimed, although the present laws had never been passed. A repeal of the law would only save the penalty, and the defendant would be still without any right. This clause of the constitution then cannot avail him.

The constitution of this state, adopted the 2d of July, 1776, declares that the government of this province shall be vested in a governor, council, and a general assembly. There is no clause restricting the powers of the government as to the subjects of legislation; no part of it has been relied upon by the counsel of defendant as being inconsistent with their laws in relation to the fisheries in the Delaware; but they rest their alleged unconstitutionality on general principles. Congress have declared, in the 34th section of the judiciary act, — 1 Story, 67, [1 Stat. 92,] — that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials of common law in the courts of the United States, in cases where they apply. In determining what is the law of New Jersey, we must look first to its constitution, which is a supreme law, binding on the legislature itself, and if it contained any restraint on the legislative power over fisheries, its obligation would be paramount, but as it contains none, the law which must govern our decision exists only in the acts of the government, organized by the people, under their constitution. We find its powers plenary, unrestrained, and brought into action by the acts under our consideration, which embrace the case submitted to us. We may think the powers conferred by the constitution of this state too great, or dangerous to the rights of the people, and that limitations are necessary, but we cannot affix them, or act on cases arising under state laws as if boundaries had been affixed by the constitution previously. We cannot declare a legislative act void because it conflicts with our opinions of policy, expediency or justice. We are not the guardians of the rights of the people of a state unless they are secured by some constitutional provision which comes within our judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The supreme court have decided, (Satterlee v. Matthewson, 2 Pet. [27 U. S.] 412-414,) that a state law, though an unwise and unjust exercise of legislative power — retrospective in its operation-passed in the exercise of a judicial function — creating a contract between the parties to a pending suit where none existed previous to the law — declaring a contract in existence prior to the law, founded on an immoral or illegal consideration, to be valid and binding on the parties — or divesting rights which were previously vested in one of the parties — is neither ex post facto, a law impairing the obligation of contracts, or repugnant to the constitution of the United States. All the decisions of the federal courts, which have declared state laws void, have been founded on their collision with the constitution, laws, or treaties of the United States, or on the provisions of state constitutions, but not on the general principles asserted by the defendant’s counsel. Were this court now to adopt them, we should disregard the high authority referred to, and submit state laws to a test as fallible and uncertain as all rules must be which have not their source in some certain and definite standard, which varies neither with times, circumstances or opinions. An ex post facto law is one which inflicts a punishment for doing an act innocent at the time of its commission. It is easy to ascertain whether a state law is within this provision. There can be no controversy about the definition of a contract, and if a state law does impair its obligation, it is clearly void. Though it is a very delicate, and has been found a very difficult matter to define the obligation of a contract, or the acts which do impair it; yet there is a fixed and certain standard to which they must be applied, and a definite rule by which to regulate their application. But there is no paramount and supreme law which defines the law of nature, or settles those great principles of legislation which are said to control state legislatures in the exercise of the powers conferred on them by the people in the constitution. If it is once admitted that there exists in this court a power to declare a state law void, which conflicts with no constitutional provision — if we assume the right to annul them for their supposed injustice, or oppressive operation, we become the makers and not the expounders of constitutions — our opinion will not be a judgment on what was the pre-existing law of the ease, but on what it is after we shall have so amended and modified it as to meet our ideas of justice, policy and wise legislation, by a direct usurpation of legislative powers, and a flagrant violation of the duty enjoined on us by the judiciary act. It is therefore not material to the decision of this case, to examine further into the existence of a right of fishery in the Delaware, common to ah the citizens of this state prior to the passage of the acts in question, since in our opinion the admission of such a right would not avail the defendant, it not being protected by any law paramount to those which have regulated or taken it away. A common law right to a common fishery in the Delaware, is to be enjoyed in subordination to the laws which regulate its use. It is a legitimate subject of legislation, and we cannot pronounce the law void because, in the exercise of an unbounded constitutional power, the government of New Jersey have restrained it within limits narrower than those allowed by common law, or common right. Neither do we think it necessary to examine into the extent of the rights of riparian owners in front of their lands. They undoubtedly had rights of fishery to a certain extent, under the colonial government, which were recognized by New Jersey and Pennsylvania, in the compact of 1783. It is admitted, that from a very early period of the history of the state, shore fisheries have been considered as private property, capable of being devised and alienated with or separate from the land to which they were annexed, subject to taxation, and taxed as other real estate. It is not pretended that there ever existed a common right of fishery in the citizens of the state, on or over the lands thus owned to low water mark; beyond it the states, since the treaty, are owners of the river in full sovereignty, to which no one could acquire any right but by some law or grant subsequent to its acquisition. The existence of such law or contract is not pretended, and it cannot be maintained as a legal proposition, that a mere permissive right of fishery is so solemn as to be incapable of restraint or regulation by the sovereign authority of a state. We can perceive nothing in those laws but the exercise of their legitimate power of sovereignty over its unquestionable domain. The legislature, for reasons of policy of which they are the sole judges, authorized the owners of those fisheries, who have complied with the conditions prescribed in the law, to use gilling seines or drift nets in the Delaware, opposite to their respective fisheries, and to prohibit the use of such seines or nets to all others, under such penalties as were thought sufficient to enforce its provisions. In thus enlarging the private, and restraining the common right of fishery, they have infringed no constitutional injunction; their acts are the law of the state; they apply to the case under our consideration, and we are bound to adopt them as the rule of our decision.

It is said that the case of Arnold v. Mundy, 1 Halst. [6 N. J. Law,] 1, etc., decided in the supreme court of this state, is in opposition to our opinion. We have carefully examined it, and find that the plaintiff claimed under no law of the state, but by virtue of an East Jersey proprietary warrant, surveyed in 1818, on ground covered by water in front.of his land. The only question before the court was, whether by virtue of such warrant and survey he had an exclusive right to catch oysters in the water over the ground so surveyed. It was decided that he had not such right, and could not maintain trespass against the defendant, who claimed under common right.

At the time of this decision there was no law giving this exclusive right to the plaintiff, or imposing any restrictions on the defendant; the case depended on the common law of the state, and settled nothing more. The validity of no state law was in question before the court; that of 1822 had not been passed; there was therefore no connection between that case and this in any one principle. If the court, in pronouncing their judgment, or any judge in delivering his opinion, had declared by anticipation that a law like the present would be void, (1 Halst. [6 N. J. Law,] 78,) the declaration would in its nature be extra-judicial, and we could not consider it as a judicial exposition of an existing law. Tlie court, or the judge who gave it, would not be bound by such opinion when the validity of the law came before them judicially; still less could a court of the United States regard it as of any other authority than the opinion of learned and highly respectable judges, on a case not before them. It is a rule of the supreme court, from which it would depart only under very peculiar circumstances, to adopt the decisions of state courts on the construction and validity of local statutes, and the exposition of local common law, but they could not extend this rule to declarations of courts or judges which were not authority even in the courts in which they were made. This court is authoritatively bound by the decision of the supreme court of the United States, but it is only by such as are judicially made. The opinion which would be given on a matter which neither was, nor could be, before them, would be entitled to all possible respect, but would be no authority to control our judgment. It cannot be expected of us to yield a greater deference to what fell from any of the respected judges in the case of Arnold v. Mundy, than to similar expressions from one or more of the judges of the supreme court of the United States. [Satterlee v. Matthewson,] 2 Pet. [27 U. S.] 413.

Judgment must be rendered for the plaintiff.