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ISAAC R. SMITH, OWNER OF THE SLOOP VOLANT, PLAINTIFF IN ERROR, v. THE STATE OF MARYLAND.

December 1, 1855

ISAAC R. SMITH, OWNER OF THE SLOOP VOLANT, PLAINTIFF IN ERROR,
v.
THE STATE OF MARYLAND.



THIS case was brought up by writ of error from the circuit court of the second judicial circuit of the State of Maryland, in and for Anne Arundel county. The case is stated in the opinion of the court. It was argued by Mr. Latrobe, for the plaintiff in error, and Mr. Campbell, for the State of Maryland.

The opinion of the court was delivered by: Mr. Justice Curtis delivered the opinion of the court.

Mr. Latrobe contended that all the laws of Maryland, namely: 1833, ch. 254; 1837, ch. 310; 1846, ch. 38; 1849, ch. 217, and a law passed in 1854, should be taken in connection as forming a body of legislation in pari materia. 12 How. 299.

These laws were said to be unconstitutional on these grounds, namely:––

1. Because they are repugnant to the 8th section of the first article of the constitution of the United States, which grants to congress the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.

2. Because they are repugnant to the 2d section of the third article, which declares that the judicial powers of the United States shall extend to cases of admiralty and maritime jurisdiction.

3. Because the said laws contain (with the exception of the law of 1854) no provision for an oath or affirmation as to probable cause before issuing a warrant, nor was such oath or affirmation, in fact, made, or any warrant issued prior to the seizure.

4. Because the said laws are repugnant to the second section of article fourth, which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Mr. Campbell made the following points:––

1. That the soil of the Chesapeake Bay is vested in the State of Maryland as the successor of the lord proprietary, and that the object and effect of the laws assailed is to protect the oysters while fixed in such soil, and for which it alone has title to them before they become articles of commerce; and that the protection thus extended does not obstruct the free use of the waters of Mayland for commerce or navigation. Browne and Kennedy, 5 Harris & Johnson, 195; Casey and Inloes, 1 Gill, 512; Corfield and Coryell, 4 Wash. C. C. R. 371; Bennett and Boggs, Baldwin, 72; Martin and waddell, 16 Pet. 367; 3 Kent's Commentaries, 439.

2. That the offences punished by the laws in question are not within the admiralty or maritime jurisdiction of the United States. Corfield and Coryell, (above cited;) United States v. Bevans, 3 Wheat. 386; 2 Brown's Civ. and Adm. Law, Appendix, 420.

This is a writ of error to the circuit court for Anne Arundel county, in the State of Maryland, under the 25th section of the judiciary act of 1789. It appears by the record that the plaintiff in error, being a citizen of the State of Pennsylvania, was the owner of a sloop called The Volant, which was regularly enrolled at the port of Philadelphia, and licensed to be employed in the coasting trade and fisheries; that, in March, 1853, the schooner was seized by the sheriff of Anne Arundel county, while engaged in dredging for oysters in the Chesapeake Bay, and was condemned to be forfeited to the State of Maryland, by a justice of the peace of that State, before whom the proceeding was had; that on appeal to the circuit court for the county, being the highest court in which a decision could be had, this decree of forfeiture was affirmed; and that the plaintiff in error insisted, in the circuit court, that such seizure and condemnation were repugnant to the constitution of the United States.

This vessel being enrolled and licensed, under the constitution and laws of the United States, to be employed in the coasting trade and fisheries, and while so employed having been seized and condemned under a law of a State, the owner has a right to the decision of this court upon the question, whether the law of the State, by virtue of which condemnation passed, was repugnant to the constitution or laws of the United States.

That part of the law in question containing the prohibition and inflicting the penalty, which appears to have been applied by the state court to this case, is ...


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