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

the land, anything in the law and Constitution of any State to the contrary notwithstanding, is peculiarly applicable and Canadian side that must necessarily be encountered on the American side, as our Constitution contains no such provisions.

That clause, however, has been limited purely to regulation. When the Dominion attempted to dispose of, as well as to regulate, the fisheries, the Supreme Court of Canada held, within the last few years, that the power did not extend as far as that, and denied the right of the Dominion to sell exclusive licenses at any point in waters which are adjacent to, or included in, any of the provinces (the Provincial Fishery Case, 26 Canada Supreme Court Reports, p. 444). The same view of the law was taken by the Privy Council in England, which affirmed the judgment with a few modifications—but not in this respect—and at the present time it can be safely considered that the Dominion Parliament can make all laws necessary to protect all of the waters between the United States and Canada, and can also enforce them by penalties and punishments, and take cognizance of, and punish, any crimes which may be committed in any part of the waters-whether on one side of the boundary or on the other-in case any treaty should be made in regard thereto, and providing therefor.

With the Federal Government of the United States, however, it is apparently different. There is no power to regulate fisheries expressed in our Constitution. In McCready vs. Virginia, above cited, as well as in other cases, it was distinctly held that the right to regulate fisheries is within the State, and not within the Federal jurisdiction; that it cannot be acquired by the United States, either under the regulation of navigation, the regulation of commerce, or the granting of immunity of citizenship; and, as there is no other method by which the United States can acquire the power, it would seem as though the opportunities of regulating and preserving these fisheries must either be lost, or left to such precarious protection as a dozen different States acting independently of each other can afford.

As the only possible solution of the question can be reached by the process of elimination, it will be well now to consider how far the States are able practically to protect these fisheries.

By the Federal Constitution, the States are prohibited from making any compact, either with each other or with any foreign power. Reciprocal legislation is almost equivalent to compact by treaty; it is extremely doubtful whether the States have the right to enter into any plan of reciprocal legislation with Canada; and, even if they had, there is absolutely no power which would legally or morally bind them, or any of them, not to modify or repeal such legislation; if the matter could be adjusted by uniform State and Provincial legislation there would be no assurance whatever of its continuance.

Assuming, however, that uniform legislation were adopted and continued, there is no guaranty of its enforcement. The boundary lines are uncertain, and the laws of one State could not be enforced, or infractions thereof punished, in another State; there would always be a

one in which the treaty-making power should be exercised for the benefit of the entire Union.

question as to the territorial jurisdiction of the spot in which the crime took place; and the expense of protecting the fisheries would probably be more than the States would care to expend.

Under these circumstances, it is apparent that there can be no complete protection of the entire fisheries, unless it is accomplished by means of a treaty between the United States and Great Britain, placing the control of all the fisheries in conterminous waters jointly under the two governments, with power to punish infractions, wherever the same may be committed, under such regulations as shall be made by reciprocal legislation of the Congress of the United States and the Parliament of the Dominion of Canada.

There can be no doubt, whatever, as to the right of the Dominion to enter into this treaty and prescribe the rules and regulations thereunder, and to punish infractions thereof. The question as to whether the United States can enter into that treaty, or not, involves some consideration of constitutional provisions; but an examination of the various authorities upon the subject clearly sustains the right of the Federal Government in this respect.

III.

THE POWER OF THE UNITED STATES TO REGULATE THESE FISHERIES UNDER THE TREATY-MAKING PROVISIONS OF THE CONSTITUTION.

There has already been submitted a statement as to the treaty-making power of the United States, and a compilation of the authorities in regard thereto; and suffice it to say in this brief memorandum that under the decisions therein referred to-principally-Ware vs. Hylton, (3 Dallas, 199), Chirac vs. Chirac, (2 Wheat. 259), Hauenstein vs. Lynham, (100 U. S. 483), DeGeofroy vs. Riggs, (133 U. S. 258), the United States possess, under the Sixth Article of the Constitution, a peculiar power to make treaties through the President and Senate which enables the Federal Government, whenever it undertakes to make a treaty within the proper lines of treaties as generally made between sovereigns, to go much further in regard to regulating matters within the jurisdiction of the States than the legislative department of the Government can go (see 8 Op. Atty. Genls. 411).

In De Geofroy vs. Riggs, cited supra, Mr. Justice Field held that "the treaty power extends to all proper subjects of negotiations between our government and the government of other nations." The question, therefore, to be decided, is whether or not the regulation of these fisheries is a proper subject of negotiation between the two governments interested therein. There can be no doubt in this respect as fisheries have been the subject of treaty stipulation for over a hundred years, not only between the United States and Great Britain, but other nations as well (treaties of Utrecht, 1713; Paris, 1763; Paris, 1783; London, 1818; Elgin Marcy, 1854; Washington, 1871).

The United States have already regulated by treaty matters which