Page:Federal Reporter, 1st Series, Volume 2.djvu/742

 m BB AH OHONG. 785 �imprisonment for the period of 30 days. Being imprisoned in pursuance of the judgments, they severally sued eut writs of habeas corpus, and now ask to be discharged on the ground that their imprisonment is in violation of our treaty with China, commonly known as the Burlingame treaty, and the fourteenth amendment to the national constitution. The attomey general, wha appears for the respondent in the inter- est of the state, does not seek to re-open the question decided in Parrott'fl case, but he endeavors to distinguish the two cases, and relies upon McCready v. Virginia, 94 U. S. 391, to Bupport the distinction. Citizens of Maryland were in the habit of Crossing over the Une into Virginia, and planting oysters in the waters of the latter state. The state of Vir- ginia, desiring to preserve the profits of the business to its own people, passed an aet making it an offence for citizens of other states to take oysters from or plant them in the waters of Virginia. McCready was convicted and fined for planting oysters in Ware river, one of the waters of Virginia, in viola- tiori of this act. He claimed the act to be void on the ground that it was passed in violation of that provision of the national constitution which says: "Citizens of each state shall be en- titled to ail the privileges and immunities of citizens in the several states." The supreme court held that the right to take fish in the public waters of the state is not a privilege of inter- state citizenship. It held the state to be the owner, Bubject to the right of navigation, of the tide-lands, and the tide-waters covering them; also of the fish therein, so far as capable of ownership, while running in the waters. The court, speaking by the chief justice, says: "These (the fish- eries) remain under the exclusive control of the state, which bas consequently the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a com- mon for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is, in efïect, 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 cornes not from their citizenship alone, but from their citizenship and property combined. It is, infact, a ����