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

§ 446. Limitations on Congress as to trade-marks.-In 1870 and 1876 Congress passed laws regarding trade-marks, otherwise are wholly within the jurisdiction of the States, such as the enforcement of claims which were not enforceable under the State laws, descent of property and testamentary disposition in regard to aliens, which also in the absence of treaty rights are wholly under the regula tions of the respective States. The cases sustaining these treaties are almost all cited in the appropriate portions of this work, and therefore are not repeated here.

The United States have regulated State fisheries under the treaty power on more than one occasion; by the treaties with Great Britain of 1854 and 1871 rights were given to Canadians to fish in waters within the three mile limit of every State, from Maine to Delaware, and no objection was ever raised in regard thereto.

This is clearly a case in which the treaty-making power should be exercised, in the absence of any other express power granted to Congress. It is manifestly necessary at the present time to find the power, as the evil cannot be remedied unless the power is found and exercised. It is shown that the States are prohibited, constitutionally, from exercising it, and unless the United States intervene, the remedy cannot be obtained.

In case it shall be exercised and the treaty sustained the remedy for an existing evil is complete. If not sustained the country is simply in the same condition it is now.

It was stated by one of the expounders of the Constitution that the object of vesting the treaty-making power in the United States was so that no single State could possibly disturb the harmony of the Union; that the impossibility of obtaining uniform legislation by thirteen different States had been demonstrated during the Confederation, and that the only safe method was to clothe the United States with the greatest possible power, so that the Federal Government could represent the States in making treaties which they could not make themselves.

Under this treaty-making power the United States can enter into an agreement with the Dominion of Canada to preserve the fisheries in all of the boundary waters; and the legislation which would subsequently be enacted by Congress, so long as it was consistent with the treaty, and necessary to attain the desired results and maintain the fisheries, would be in all respects constitutional.

Chief Justice Marshall has sustained the constitutional right of Congress to enact all legislation necessary to enforce all laws and treaties in the widest possible manner; and, wherever the United States can exercise any right under the Constitution, the power of legislation to make its laws and treaties effectual has been clearly demonstrated and sustained beyond all peradventure.

The question has been raised that, while the United States might, by treaty, grant rights to aliens to fish in our waters-which rights the States would have to respect regardless of their own laws-that it might be beyond the constitutional power of the United States to deprive a

extending the protection of the Government thereover throughout the United States;1 the law was tested; the Su

citizen of a State of his right to fish in the lakes, or to create any limitations in regard thereto, or punish him for infractions thereof, under Federal statutes in regard to fisheries in State waters.

This contention, however, seems to have been fully answered by the cases in regard to extradition.

It was long ago held that the United States had no right under the Constitution to deport or surrender a criminal, but, as soon as treaties were made with various foreign countries for the extradition of criminals, the Executive as well as the Federal Courts were immediately clothed with the power of extraditing criminals, so long as the requisitions were in conformity with the treaties.

As extradition treaties were made, Congress passed laws enforcing them; and, while there is no constitutional power given to Congress to deport any persons from the United States, or to confine them for crimes committed in territory under the jurisdiction of other countries, all of the extradition legislation has been sustained as constitutional. Here we have instances of Congress by legislation punishing, or aiding in the punishment of, criminals, for crimes wholly without the enumerated subjects of the constitution.

The analogy between the two subjects is complete. If Congress can make laws for the arrest, confinement, surrender and deportation of criminals under the extradition treaties, they certainly can make laws to punish infractions of such rules and regulations as may be necessary to enforce the preservation of valuable property rights belonging to this country and our next-door neighbors.

It must be borne in mind in this connection that the prime object would be protection and preservation of the property, and, therefore, the element of punishment of infractions of rules necessary for that object would be incidental, and within the power of Congress under the clause authorizing necessary and proper legislation to execute the law of the land.

IV.

THE ENFORCEMENT OF SUCH REGULATIONS.

Whatever treaty may be concluded between the two countries in regard to this matter should be as complete as possible in itself, both as to the manner and method of preserving the fisheries and of enforcing the contemplated regulations.

There have been many decisions in regard to the method of enforcing treaties; in the present instance, undoubtedly the treaty could not sufficiently enter into details to bring it within that class of treaties which can be enforced as to all its details by the Executive without legislative enactment.

The question of how far a treaty can be enforced by the Executive alone, and to what extent legislation is necessary to enforce it, has been

1 For note 1 see p. 324.

preme Court in 18792 decided that property in trade-marks had been recognized and protected by the common law and the statutes of the several States; that it did not derive existence as property from the act of Congress providing for registering the designs in the Patent Office; that a trademark was neither an invention, discovery, nor writing, within the meaning of those provisions of the Constitution which conferred on Congress the power to secure the exclusive right therein to authors and inventors; that if acts of Congress protecting trade-marks could be upheld as regulations of commerce, it could only be so far as their use in commerce discussed by the Supreme Court of the United States in many cases; the Court has always adhered to the rule laid down by Chief Justice Marshall in Foster and Elam vs. Neilson, (2 Pet. 253), that, when either of the parties engages to perform a particular act, the treaty addresses itself to the political and not the judicial side of the Court, and the legislature must execute the contract before it becomes the rule of the Court, and in order to be equivalent to an act of the legislature it must be able to enforce itself without any legislative assistance.

This question arose under several of the extradition treaties; in the Metzgar case the District Court of the United States held the prisoner, on the ground that an extradition treaty could be enforced by the President and a surrender of the prisoner made by him without any legislation. Judge Edmonds, in the New York Supreme Court, before whom the prisoner was brought on habeas corpus, however, decided diametrically opposite to Judge Betts, and discharged the prisoner, on the ground that the treaty had never been made effectual by legislation, and that legislation was required for that purpose.

The general consensus of opinion at the present time seems to be that a treaty should be supplemented by legislation as to details of regulation, punishment of infractions and appropriations of money. Therefore, any treaty which is made in regard to these fisheries would probably have to be supplemented by consistent and reciprocal legislation, both by the Dominion Parliament and the Congress of the United States; it probably would not, so far as the punishment of infractions of regulations is concerned, go into effect until such legislation had been adopted, although as to some of the regulations, such as policing, preserving and stocking the fisheries, and in any other respects in which the Executives could act through the various departments of the respective Governments, such legislation might not be necessary. § 446.

141.

See U. S. Rev. Stat. chap. 2, title LX, §§ 4937, et seq.

2 The Trade-mark Cases, U. S. Sup. Ct. 1879, 100 U. S. 82, MIL

1 Act of March 3, 1871, 16 U. S. Stat. at L. p. 580, prohibiting as fraudulent trade-marks similar to those of foreign manufacturers. LER, J. Act of 1876, 19 U. S. Stat. at L. p.

with foreign nations, or among the several States and with the Indian tribes was concerned; that, as the legislation did not come within those limits, it was void for want of constitutional authority.

The court expressly avoided a direct decision as to the right to regulate trade-marks by treaties, the opinion saying: "In what we have here said we wish to be understood as leaving untouched the whole of the question of the treatymaking power over trade-marks, and of the duty of Congress to pass any laws necessary to carry treaties into effect." 3

§ 447. Regulation and protection of trade-marks by treaty. Since that decision was rendered, however, the United States has entered into numerous treaties with foreign countries for the protection of trade-marks.1 During recent years our Government has made special efforts to extend international protection to industrial property throughout all of the civilized countries of the world in the same manner as postal facilities have been extended; it has not only been

This extract from the opinion is | patents, and the second to trade on p. 99, 82 U. S. § 447.

1 See TREATIES APPENDIX at end of this volume for some of these treaties.

See also Senate Document No. 20; 56th Congress, 2d Session; Report | of the Commissioners Appointed to Revise the Statutes Relating to Patents, Trade and other Marks, and Trade and Commercial Names under Act of Congress Approved June 4, 1898. December 4, 1900. Referred to the Committee on Patents and ordered to be printed. Washington, Government Printing Office, 1900.

This is a report of Francis Forbes, Peter Stenger Grosscup and Arthur P. Greeley appointed under the Act of June 4, 1898, to revise the statutes relating to patents, trademarks, etc. The Report is divided into two parts; the first relating to

and other marks, and commercial names. The Act appointing the Commission will be found on p. 145.

The history of the treaty relations of the United States with foreign countries in regard to trademarks and patents and the mutual protection thereof, together with the legislation of the United States and of foreign countries affecting the same has been collated in the various appendices to this Report. This Report consists in all of 529 pages. On pp. 141-144 will be found a table of contents in which the laws of the many foreign countries in regard to trade-marks are collated, and chap. 18, pp. 325-337 contains an abstract of the existing "Treaty agreements relating to trade-marks between the United States and foreign nations" alphabetically arranged.