The statute of Rhode Island prohibiting the taking of oysters and other shell-fish within the waters or on the shores of the State, by any but persons inhabitants of the State and domiciled therein, is not repugnant to Art. IV. Sec. 2 of the Constitution of the United States, nor to Art. I. Sec. 17, of the Constitution of Rhode Island, nor to any provision in the Charter of Charles II. to the colony of Rhode Island.
STAPLES, C.J.
The question involved in the exceptions of the defendant is, can the Legislature of Rhode Island legally prohibit citizens of other of the United States from taking oysters in the navigable waters of the State of Rhode Island?
The defendant denies their power so to do, first because such prohibition would be contrary to the Constitution of the United States, art. 4, sec. 2, and second, because the right of citizens of other states to take oysters in said waters is reserved in the Charter and Constitution of Rhode Island.
Article 4, sec. 2, of the Constitution of the United States, provides "that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." This section has been referred to in the argument, as though it conferred on the citizens of each State, all the privileges and immunities which the citizens of the several States enjoy. Such is neither its language nor its import. No Court or Legislature in the Union has ever given such a construction to it; but on the contrary, a marked distinction has ever been made by them between the rights and powers of the citizens of a State, and the rights and powers of all other persons resident within the limits of the State, whether they are citizens of other States or foreigners. To deny the right to every State to make such distinction would be to annihilate the sovereignty of the States, and to establish a consolidated government in their stead. But this section in its terms, confers on the citizens of each State, "all privileges and immunities of citizens in the several States," that is, the rights and powers of citizenship. They are not to be deemed aliens. They are not to be accounted as foreigners; or as persons who may become enemies. They are to have the right to carry on business, to inherit and transmit property, to enter upon, reside in and remove from the territory of each State, at their pleasure, yielding obedience to and receiving protection from the laws. Such are some of the privileges and immunities conferred by this section, and all that are granted by it are of the same character. That the right claimed by the defendant is not one of these, has been expressly decided in the cases of Corfield v. Coryell, (4 Wn. p. 376.)
In support of the second point, the counsel for the defendant cites the Charter of King Charles II. to the Colony of Rhode Island, (Dig. 1844, p. 7,) where is found the following provision:
" Provided also, and our express will and pleasure is, and we do, by these presents, for us, our heirs and successors, ordain and appoint, that these presents shall not, in any manner, hinder any of our loving subjects, whatsoever, from using and exercising the trade of fishing upon the coast of New-England, in America; but, that they, and every or any of them, shall have full and free power and liberty to continue and use the trade of fishing upon the said coast, or 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; and to build and set upon the waste land, belonging to the said Colony and Plantations, such wharves, stages and work-houses, as shall be necessary for the salting, drying and keeping of their fish, to be taken or gotten upon that coast."
Art. 1, sec. 17, of the Constitution of the State, provides that
"The people shall continue to enjoy and freely exercise all the rights of fishery, and the privilege of the shore to which they have been heretofore entitled, under the charter and usages of the State. But no new right is intended to be granted, nor any existing right impaired by this Constitution."
This section of the Constitution leaves the rights of fishery and privilege of the shore, where they were. It neither diminishes or adds to them, so that the rights of the defendant, if at all affected by it, being a citizen of Massachusetts, must be sought for in the charter and usages which existed before its adoption.
The clause of the charter above quoted does not give the right to fish upon the shores of the Colony of Rhode Island. That was not its intent and object. On the contrary, its design was to declare that the charter then granted should not intrench upon the rights of fishery previously enjoyed. The State of Rhode Island does not now contend that the charter cuts off the right which the defendant claims, or affects it to the injury of the defendant.
But suppose the charter did confer some rights of fishery upon some persons. Does it embrace the right here set up, and confer it upon the defendant? It is very evident from the terms used in relation to the right granted, that it related to the cod fishery, and not to the oyster fishery. The former might require "wharves, stages and work-houses," "for the salting, drying and keeping" of the fish "to be taken or gotten upon the coast," while the latter would not. But if it did include oyster fisheries, the right granted was to be exercised "where they had been accustomed" before and at the date of the charter to exercise it, and the evidence produced did not show that the Seekonk River was one of those places.
The exceptions of the defendant must therefore be overruled.
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