The opinion of the court was delivered by
Dalrimple, J.This action of replevin was brought for the taking of a schooner, and the furniture and apparel thereof belonging to the plaintiffs. The defendant admits the taking, and justifies the same on the ground,'that at the time when the vessel was seized she was in the county of Cumberland, in this state, and had on board a person not an actual inhabitant and resident of this state, who was then and there engaged raking and gathering oysters on his own account, and on account and for the benefit of his employers. The avowries contain the further allegation, that immediately upon the seizure the defendant gave information thereof to two justices of tho peace of said county, who appointed a day and place for the hearing and determination of the matter. The allegation of the avowries bring the defendant’s defence in terms within the act entitled “ An act for the preservation of clams and oysters.” Nix. Dig., p. 131, §§ 7, 9.* The plaintiffs plead to these avowries, that the vessel when seized was in charge of a certain person who was engaged in gathering oysters in Maurice river cove, within the waters of the State of New Jersey, which oysters were planted and placed there by a citizen and resident of the State of New Jersey, who sold them to a purchaser under whom the plaintiffs claimed the right to take them. The defendant demurs to these pleas, and insists that the act applies as well to planted as natural oysters. This ground of demurrer is well taken. The seventh section of the act which authorizes the seizure makes no *522distinction between natural and planted oysters. It prohibits, in general terms, the raking or gathering of oysters in any of the waters of this state, by any person who is not, at the time, and has not been for six months then next preceding, an actual inhabitant and resident of this state. By the first section of the act, a distinction is made between natural and planted oysters. By that section, it very clearly appears that the legislature intended the general term oysters to include the planted as well as the natural oysters, and , we have no right to restrict the seventh section within limits more confined, than it is quite clear the law maker intended
The plaintiffs, however, insist that admitting the true construction of the act is as I have stated, it is unconstitutional and void, because it is a regulation of commerce. It was doubtless with a view of raising this question, that it was averred in the pleas that the vessel at the time of her seizure had a coasting license from the government of the United States. But it cannot with any propriety be said that a statute which simply prohibits non-residents on board a vessel from subverting the soil of the state and carrying away her property, or that of her grantees, leaving such vessel free to pass and repass, and go whithersoever those in charge of her desire, is a regulation of commerce with foreign nations, or among the states. It is a law for the protection of property— at most a(n internal police regulation entirely within the competency of the state to adopt, and it is not perceived that it can by possibility interfere with commerce in the sense in-which that word is used in the federal constitution.
It is insisted in the next place that the statute is a -violation of that clause of the constitution of the United States which ordains that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. That this objection to the act is unfounded, will be apparent, I think, when we consider what is the right of .which it is said the plaintiffs are deprived. It is of coming upon the lands under water belonging to the state and subverting the soil and interfering with the property there found. The lands are those of the state and she may retain them in *523her own actual possession, or grant or lease or otherwise part with the possession of them on such terms as she believes sound policy dictates. She hath enacted that a certain class only of her own citizens may gather oysters in the public domain, amd restricted the privilege to them. I do not see that the rights thus granted were in any proper sense privileges and immunities of the citizens of this state, or the class •of them to which the state gives the right. To so hold would require the state to grant to the eitizens of all the other states the right to use the property of the state on the same terms and conditions she is willing to accord such right to her own citizens. In other words, the doctrine sought to be maintained is, that when the state grants to a class of her own citizens the right to use the lands of the state, she must let in the citizens of all the other states on the same terms, and that she cannot constitutionally restrict the right to the people of this state. In my opinion, such a doctrine cannot be maintained on principle or authority. Before leaving this branch of the case it may be well to observe that the act makes no discrimination, except as to the rights conferred between citizens of this state and of another. Both alike are prohibited from taking oysters by the use of any vessel on which is employed a person not a citizen of this state.
It is next objected that the act is unconstitutional, because it deprives the plaintiffs of their property without due process of law. The construction is, that inasmuch as the vessel may be seized without process first issued, and without notice to the owner of the seizure, ho may be deprived of his property without opportunity to make defence. It must be recollected that the proceeding is in rem against the vessel to declare her forfeited because of a violation of our laws. The act provides that after the seizure, information shall imm«diately be given to two justices of the peace of the county where such seizure shall have been made, who shall meet at such time and place as they shall appoint, and hear and determine the matter. It is thus shown that the vessel is in the first place to be seized while unlawfully employed within our jurisdiction, and in the next place before condemnation, there is to be a hearing *524and determination before a competent tribunal. The proceeding is to be upon due inquiry. Provision is made for hearing the parties, and judgment is to be given only after such hearing. There is to be a regular trial after due appointment of time and place for the same. Any arbitrary, unjust, illegal or oppressive proceeding of the justices, if any such should happen, may be corrected by the Supreme Court by virtue of that general superintending power whioh it has over all inferior jurisdictions. It appears to me that it would be going too far to hold that such proceeding is void, because no express provision is made for notice to the defendant of the seizure. The seizure of the vessel while in the hands of the owner or his employees is practicably as effective notice that the proceeding has been initiated as could, under the circumstances, be given. The record in this case shows that when the vessel was seized she was in the possession of an employee or agent of the plaintiffs. Without now attempting to define the precise meaning of those much discussed phrases, “due process of law,” and “ law of the land,” it is sufficient to say that when the proceeding is in-rem, against property in a foreign jurisdiction, found in the possession of the owner or his agent, and in use for an unlawful purpose, which causes a forfeiture of the same, the seizure thereof without judicial process first issued, preparatory to regular trial and condemnation, is not a deprivation of property without due process of law.
It is only necessary to say that the plaintiffs’ objections that the act is repugnant to the constitution of this state, in that it provides for a criminal prosecution and search and seizure of properly without warrant and trial by jury, are not deemed tenable. The proceeding is not a criminal prosecution, nor is it an invasion of the security guaranteed by the constitution of this state, to the people in their homes, persons, papers and effects against unreasonable searches and seizures, nor is the act open to the objection that it violates the right of trial by jury. The case is analogous to that of McGear et al. v. Woodruff, 4 Vroom 213, and must be controlled by the principles in respect to the right of trial by *525jury, adjudicated iu that ease. In considering the main questions in this case, I have not referred to the adjudged cases which bear upon the points discussed, nor was it necessary. The elaborate brief of the counsel of defendant refers to all the principal authorities, while the subject is exhaustively examined in the opinion of the court below, so far as the points there raised are concerned, and in the case of Bevans v. Compton et al., in the Circuit Court of the U. S. for this district. Judge Mxon, in a clear and well considered opinion, a copy of which was furnished to the court on the argument of this case, taking substantially the same view of the main questions involved as is above indicated.
The result is, that no error having been shown in the record or proceedings below, the judgment must be affirmed, with costs.
For affirmance. — The Chancellor, Chief Justice, Bedle, Dalrimple, Depue, Scudder, Woodhull, Clement, Dodd. 9.
For reversal — None.
Cited in Day v. Compton, 8 Vr. 514; Weller v. Snover¡ 13 Vr. 841.
Rev.,p. 136, §§ 7, 9.