States has on several occasions, notably in the treaties with Great Britain of 1854 and 1871, bartered away the exclusive rights of the States over the fisheries in those waters in exchange for reciprocal provisions granted in the territorial waters of Great Britain adjoining the British North American provinces, not to the citizens of the respective States affected but to all American fishermen.3

It has also been settled that the United States cannot regulate either the lake or deep sea fisheries in the absence of treaty stipulations; if it did so it would be making rules and regulations, not for territory of the Union, but for territory and property which belongs exclusively to the States, and which are exclusively under their several jurisdictions. Although this is the law in the absence of treaty stipulations, the author believes, and has already expressed his opinion to that effect 5 that the United States possesses ample power to regulate fisheries in the lakes and within the three Manchester vs. Massachusetts, | 450; Treaty of 1871, arts. XVIII, U. S. Sup. Ct. 1891, 139 U. S. 240, et seq., U. S. Tr. & Con., ed. 1889, BLATCHFORD, J. p. 478, see pp. 486, et seq.

See also Senate Document, No. 231, 56th Congress, 2d Session, 1901, part 5, vol. V.

Note 5 (p. 318), post, contains other authorities on this point.

Treaty of 1854, arts I and II, U. S. Tr. and Con., ed. 1889, pp. 448

4

Report No. 2382, House of Rep., 49th Congress, 1st Session, May 13, 1886, submitted by J. R. Tucker from the Committee on the Judiciary: Fishing in the Navigable Waters of the United States.

"MEMORANDUM ON CONSTITUTIONAL QUESTIONS INVOLVED IN SETTLEMENT OF QUESTIONS RELATIVE TO THE PROTECTION OF THE FISHERIES IN BOUNDARY WATERS. (Submitted by the author to the Anglo-American Joint High Commission, October, 1898) The question now under consideration is how the preservation of valuable property rights can be mutually secured for two nations, who are now deriving large benefits therefrom, which, under proper treaty stipulations and reciprocal legislation, will annually increase, but which, in the absence of such stipulations and legislation, must decrease as, under existing conditions, the fisheries are rapidly deteriorating and practically doomed eventually to destruction. It will be treated under the following heads:

1. The nature of the boundary waters, and the different kinds of waters in which the fisheries exist.

2. The jurisdiction over those waters by the States and the Federal Government on one side, and the Dominion and the Provinces of Canada on the other.

mile limit, in pursuance of any stipulations which might be included in any treaty made with His Majesty, the King of Great Britain, in regard to the fisheries, in those

3. The power of the United States to regulate such fisheries under the treaty-making power.

4. The enforcement of such regulations, in case the United States should exercise the treaty-making power and regulate such fisheries thereunder.

I.

THE NATURE OF THE BOUNDARY WATERS AND THE DIFFERENT KINDS OF WATERS IN WHICH THE FISHERIES EXIST.

An examination of the Report of Messrs. Rathbun and Wakeham shows that several different classes of waterways are included in the various boundary waters between the United States and Canada. At either end there are ocean waters; the central boundary waters consist of the Great Lakes, which are inland seas; at various places along the boundary there are rivers and lakes-some of which are navigable, and some of which are not. No general rule, therefore, can be applied except the one broad rule that as all of them are adjacent to States forming part of the Union, they are all territorial waters, not of the United States, but of the separate States respectively, the differences between them being simply how far the United States can exercise jurisdiction thereover, as to admiralty and maritime matters in the Federal courts, and as to the regulation of commerce and navigation by the legislative and executive departments of the Government.

Any attempt to claim jurisdiction over the Great Lakes or in the tidal waters would not be sufficient, as it would entirely omit the right to regulate fisheries in the unnavigable lakes and streams, the protection of which is equally essential on account of the spawning grounds, contamination of water, &c.

An examination of the decisions of the United States Supreme Court in regard to the rights and ownership of fisheries results necessarily in awarding that ownership and the control thereof to the States.

It was very early settled by the Supreme Court that the ownership of the land under the water adjacent to each of the ocean States, to the three-mile limit of sovereignty, belonged to the respective States, and not to the Federal Government. This decision resulted from a recognition of the fact that had the independence of the States forming the Union been separately recognized by Great Britain by the treaty of peace, there would have been no question as to the sovereignty of each State over the waters adjacent to it; and, as the spirit of the Union was that there should be State Sovereignty over every part of it, it was but consistent to grant the sovereignty of the waters adjoining each State to the respective States themselves.

When the Northwest Territory was divided into States, the boundaries of each State, as it was organized and admitted to the Union, were designated where lakes intervened, without regard to land or water, the boundaries passing indiscriminately over land and through the water,

waters, although in the absence of treaty relations such regulations would be wholly outside of its power and domain.

so that several of those States include portions of the Great Lakes and the entire lake system eventually was divided between them.

At the present time every one of the lake States includes within its boundaries portions of the Great Lakes, those portions in many cases constituting large parts of counties within the States, the respective sheriffs, coroners and other county officers exercising jurisdiction there

over.

In many instances the boundary lines pass through the middle of rivers, some of which are navigable, and some of which are not; and in those cases the State and county lines extend conterminously with the boundary line of the United States. As, therefore, there are now no territories along the northern boundary of the United States, all the waters on the boundary line are under the jurisdiction of States.

A misconception as to the nature of the waters in the Great Lakes may to some extent have arisen since the decision, in 1893, of the Supreme Court in the case of the United States vs. Rodgers, ( 150 U. S. 249), to the effect that the waters of the Great Lakes are "high seas." As a matter of fact, that decision, which was by a divided Court-three of the Judges dissenting, in a very able opinion-only determined, that for the purpose of establishing criminal jurisdiction of the United States Courts under the clause of the Constitution which gives Congress the right to define and punish felonies on the high seas, those portions of the Great Lakes which are beyond the boundary lines, and therefore not within the jurisdiction of any State of the Union, are, for the purposes of conferring such jurisdiction, to be considered as high seas, in the same manner that those portions of the ocean that are beyond the threemile limit have always been considered high seas.

It is not the purpose at this time to discuss the relative merits of the minority and majority opinions of the Court in that case; but suffice it here to say that the rule was not applied to those waters that are within the boundary lines of the United States, and they cannot, under that decision, be characterized as high seas, because they are within the jurisdiction of the various States of which they form a part.

The Constitutions of the various lake and ocean States show to what extent the State boundaries include the waters adjacent to them. It must be considered as settled that there are no territorial waters of the United States, so far as property in the land under, or property in, the water is concerned, or the right to control the use of such water, except only as far as it is subject to the paramount right of the United States to regulate navigation and interstate commerce thereover.

A very interesting case in this connection is that of the People vs. Tyler (7 Mich. 161), in which the right of the States to exercise criminal jurisdiction over the Great Lakes was thoroughly discussed and sustained, and, although this decision was to some extent criticised by Mr. Justice Field in the majority opinion of the People vs. Rodgers, it was not overruled as to the jurisdiction of the States within the boundary

The author considers that such a treaty and the legislation necessary to enforce it not only can be made, enacted and

lines, as the Rodgers case related to a crime which was committed on the other side of the boundary line.

II.

JURISDICTION OVER THE BOUNDARY WATERS BY THE STATES, THE FEDERAL GOVERNMENT AND THE DOMINION OF CANADA.

As early as 1820 Judge Washington decided, in the case of Corfield vs. Coryell (4 Wash. C. C. p. 371), that each State owned all of the tidal waters within three miles of its shores, and could reserve the fisheries therein to its own citizens exclusively, and punish citizens of other States who attempted to fish in State waters in violation of such protective statutes, by confiscation of vessel, plant and catch.

This view as to State ownership and jurisdiction has been sustained by the United States Supreme Court in a long series of decisions, including the cases of Smith vs. Maryland (6 Cranch, 286); McCready vs. Virginia (94 U. S. 391); and Lawton vs. Steele (152 U. S. 133), which is a very recent decision, and in which it was held that the waters of Lake Ontario are unquestionably within the jurisdiction of the State of New York, and that it is within the power of a State to preserve from extinction fisheries in waters within its jurisdiction by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of young, as well as mature fish, and, in fact, declaring not only that the enactment of the legisla tion was proper and legal, but also that it was the duty of the State to enforce it. The rule as to ownership of the States in the various waters bounding them can be summarized as follows:

The States are the owners of all the lands under water, and of the water thereover, adjacent to or within their respective boundaries, holding them, however, charged with a trust in favor of the people of the State for proper and general purposes, with a limited right of disposition, so far as it does not interfere with those rights, but also subject to the paramount right of Congress to regulate navigation thereover for the benefit of all of the citizens of the Union, or of other persons to whom Congress may give the right of such navigation.

This rule was adopted by the Supreme Court of the United States in the Illinois Central Case, in 146 U. S. 387, and, although the court divided as to the extent of the right of permanent disposition of the land under water, it was unanimous as to the general principle above enunciated. See also Pollard vs. Hagan (3 How. 212).

Nearly every State has adopted fishery laws. They are all independent of each other. Boundary lines between the States, and the counties of the States, adjoining the lakes are often vague and indefinite; but within those lines, when determined, the jurisdiction is complete. There is only one case which in any way intimates that the United States might exercise some right as to jurisdiction as to fisheries in tide waters.

enforced, but that it is one of the instances to which Article VI of the Constitution, making treaties the supreme law of

In Manchester vs. Massachusetts (139 U. S. 240), the Supreme Court decided that the statutes of Massachusetts regulating the fisheries were constitutional, and also that Buzzard's Bay-although more than six miles wide-was wholly within the jurisdiction of the State. At the end of the opinion, the court said that if it were possible for the United States to exercise jurisdiction, the fact that it had not done so would give to Massachusetts that concurrent right which exists in many matters until Congress shall have exercised control thereover, such as the right to control pilotage and other matters. The remarks were wholly obiter, as the Massachusetts statute had been sustained on the ground of ownership and establish no basis for the inferential construction that had Congress exercised control, the law of Massachusetts would have been superseded. As a matter of fact, so far as the Great Lakes are concerned, the case of Lawton vs. Steele supersedes that of the Manchester case, for it holds that the waters are unquestionably within the jurisdiction of the State of New York.

There is another, what might be called "hint," of Federal jurisdiction in Manchester vs. Massachusetts, when the court says that possibly the Fish Commissioner under the Fish Commission Act might not have the power to take fish out of all waters of the different States if the United States did not have some such power.

This remark was also obiter, and it would be extremely dangerous to rely upon any implied powers arising from the Fish Commission Act, as it covers all classes of waters, not only tidal, but also lake, without defining them; and under no possible stretch of construction could the jurisdiction of the United States extend to unnavigable waters, such as are necessarily included in the Fish Act. The constitutionality of the Fish Commission Act has never been decided, and it probably never will be; it is for the benefit of every State in the Union that the Fish Commission should pursue the great work it has inaugurated and so successfully conducted up to the present time, and that the Fish Commissioner should be clothed with authority to take fish at any time and place, so that he would not be liable to the penal statutes of any States while making his experiments, which, in many instances, must involve the taking of fish at seasons which would be otherwise improper. This view of the case would undoubtedly be accepted by the States as a matter of courtesy, although possibly a strict construction of the act might result in a decision to the effect that it afforded no protection as against the statute of the State in which such waters are situated.

Passing from the American side of these boundary waters to the Canadian, we find exactly the same conditions of ownership and property rights in the provinces as exist in the States; but the British North America Act contains, among the delegated powers to the Dominion Parliament, a distinct provision empowering it to regulate "sea and inland fisheries," and the insertion of those four words in the British North America Act obviated all the constitutional difficulties on the