greenbar.gif (2332 bytes)

Mc Cready v. State of Virginia

greenbar.gif (2332 bytes)

In Mc Cready v. State of Virginia, 94 U.S. 391 (1876,) a citizen of Maryland, was indicted, convicted, and fined for planting oysters in Ware River, a Virginia river in which the tide ebbs and flows, (the bed and banks of which are considered "sovereign lands" and to which the right of common piscary is attached.) The case was litigated on the basis of the "privileges and immunities" clause.

Stated Chief Justice Waite:

"..The principle has long been settled in this court, that each State owns the beds of all tide-waters 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 id. 66. In like manner, the States own the tide-waters 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 held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and inter-state commerce, has been granted to the United States. There has been, however, no such grant of [federal] power over the fisheries. These remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tide-waters 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."

"...we think we may safely hold that the citizens of one State are not invested by this clause of the Constitution [privileges and immunities] with any interest in the common property of the citizens of another State. If Virginia had by 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."


bckgrn.gif (4570 bytes)