States, and it has been held in an opinion rendered by Attorney-General Griggs in 1898 (Opinions of Attorney-General, Vol. XXII, p. 214), and this view presumably prevails to-day, that on account of the division of powers between the Federal and State governments under the Constitution the regulation of the fisheries in these boundary waters within the territorial limits of the several States is a subject of State rather than of Federal jurisdiction, and that Congress has no authority, in the absence of a treaty giving such authority, to pass laws to regulate or protect the fisheries in such waters.

Notwithstanding this exclusive jurisdiction of the several boundary States over these fisheries in the absence of a treaty, the right of the treaty-making power to take jurisdiction over these fisheries is recognized and supported in this opinion of the Attorney-General, and such power has been exercised in full measure in entering into the present treaty. Under the provisions of this treaty, the fishery regulations adopted and enforced by the individual boundary States are superseded and displaced, in so far as they conflict, by regulations to be adopted by an international commission and to be enforced by the Federal Government, if necessary, thus substituting for the authority of the individual boundary States the authority of an international commission backed by the Federal Government and extending the jurisdiction of Congress to the regulation of these fisheries, which in the absence of this treaty provision would be entirely beyond the control of Congress.

This treaty, therefore, recalls, and it is to be hoped will finally settle, the question of whether or not the treaty-making power has jurisdiction to deal with matters which are not among the enumerated powers delegated by the Constitution to Congress, and to extend the jurisdiction of Congress over such matters when congressional legislation is necessary to carry out treaty stipulations, which has been the subject of much discussion in the past. Those commentators on the treaty-making power who are inclined to maintain States' rights at the expense of the effectiveness and the national character of the Federal Government in its foreign. relations have always questioned the right to exercise so extensive a power by treaty under any circumstances. By entering into this treaty, however, the executive branch of the Government and the Senate, which together constitute the treaty-making power, have asserted in the most emphatic manner the possession of this power, and unquestionably the weight of authority found in judicial decisions and in the opinions of those entitled to speak with authority on the subject, and in the precedents already established, sustain beyond the possibility of any

reasonable doubt the right of the treaty-making power to exercise such jurisdiction to the fullest extent, provided, always, that the treaty is designed to promote the general welfare and relates to matters clearly of an international character which either can not be dealt with so effectively by the individual States or not at all except by treaty.

An examination of the fisheries question and the conditions surrounding it will show that the exercise of this power in the present case arises from and is based upon the international character of such fisheries and the interest of the nation at large in having them protected and preserved on account of their great value as a food supply, and from the impossibility, as shown by practical experience, of adequately providing for their protection and preservation except by regulations established by means of an international agreement, as here proposed, under Federal authority.

The importance of adopting uniform restrictive regulations for the protection and preservation of these fisheries and of establishing fish hatcheries to increase the supply of food fish has long been recognized on both sides of the boundary. The whole subject was examined and reported on by a joint commission of two experts appointed in 1892 by the United States and Great Britain, and their report establishes conclusively the necessity not only of revising and adding to the protective regulations then in force and of providing methods for increasing the supply of food fish, but also of securing uniformity and harmony in the application and enforcement of such regulations and methods in the waters of Canada and of the several boundary States on the American side of the line. It appears that under existing conditions the differences in the method of dealing with the fisheries and of enforcing the regulations adopted in the several different States and in Canada have led to mutual recriminations and complaints, attended by considerable friction and some violence.

Efforts have been made to secure uniform action among the several States on the one side and the Dominion of Canada on the other along the lines recommended in this report, but without success. Concurrent legislation by the several States and Canada has been found inexpedient. Experience has shown that it would be a practical impossibility to secure such legislation, and even if it could be secured there would be no guaranty of any degree of permanency. It would of course be permissible, if the consent of Congress could be secured, for the several States to avail themselves of the privilege reserved to them under the Constitution of entering into an agreement on this subject with the Dominion of

Canada, but our history furnishes no precedent for an agreement between a State and a foreign government, and although such a course might be appropriate in this case, yet undoubtedly it would be even more difficult. for the several States and the Dominion of Canada to reach an agreement on these questions and to secure congressional approval of it, than it would be to secure uniform regulations among the several States and in Canada by concurrent legislation independently of any such agreement. Moreover, even if such an agreement became effective, the situation would hardly be more satisfactory in the end than under concurrent legislation, for so long as the regulations on the American side were under State control, the difficulties attendant upon their enforcement would be largely the same, whether the Canadian regulations were concurrent or divergent. The inherent difficulty with any arrangement leaving the control of these fisheries to the several border States is that the enforcement of fishery regulations in the contiguous waters is likely to involve the authorities on either side in conflict with the citizens of the other country, or otherwise raise international questions which the several States have no power to deal with. The several boundary States seem to be entirely willing to turn to the Federal Government for relief in this matter, and their fisheries commissioners and in more than one instance their legislatures have expressed the view that if these fisheries are to be preserved they must be subjected to Federal regulation, and in this view the commercial interests in the Great Lakes fisheries have fully concurred.

It is evident, therefore, that nothing short of the adoption of regulations for the protection and preservation of these fisheries through the operation of the treaty-making power would furnish a complete and permanent solution of the difficulties presented, and if the present treaty accomplishes this result it will serve as a conspicuous example of the wisdom and foresight of the framers of the Constitution in conferring upon the treaty-making power the extensive jurisdiction which has been exercised in this case.

RUSSIAN-JAPANESE FISHERIES CONVENTION OF JULY 15 (28), 1907 In pursuance of Article XI of the Treaty of Portsmouth, Russia in July, 1907, reached an understanding with Japan, granting to subjects of the latter State fishing rights along the coast of Russian possessions in the seas of Japan, Okhotsk, and Bering. This convention, with the

1 For the text of this article see U. S. For. Rel., 1905, 826.

The text of the fisheries convention of 1907 is contained in the current number of the Supplement of this JOURNAL.

explanatory protocol and reciprocal declarations annexed thereto, embodies an agreement of unusual significance.

The territory concerning which provision is made extends from the Korean boundary to Bering Straits. The extent of this coast line, without allowing for the indentations of the Asiatic mainland, corresponds roughly to that of North America included between northern Labrador and the island of Cuba. Japanese subjects are given the right to —

Fish, catch, and prepare all kinds of fish and aquatic products except fur seals and sea otters, along the Russian coasts of the seas of Japan, Okhotsk, and Bering, with the exception of the rivers and inlets.2

3

With minute care it is provided in the annexed protocol what particular inlets are reserved. These include certain wide bays. Among them may be noted Anadyr Bay, "as far as a straight line drawn from Cape Saint Basilus to Cape Guek." These headlands are about one hundred miles apart. Saint Croix Bay, "as far as the parallel of Cape Meetchken," is also named. On the northern coasts of the Sea of Okhotsk it is provided that those bays fall within the exception which "cut into the continent a distance three times as great as the width of their entrance." Again, it is declared that for strategic reasons fishing shall be prohibited to Japanese as well as other foreigners within the limits of the territorial waters of certain bays, which include among their number Peter the Great Bay, from Cape Povorotony to Cape Gamov. These headlands are about one hundred miles apart.*

It can not be said that the Russian claim of control over fisheries within any of the reserved inlets is excessive. At the present time the principle is generally recognized that the right of a state to control a particular bay depends, not upon the distance between headlands at the entrance, but rather upon the geographical configuration of the coast of which the inlet or bay forms an indentation, and over which the state exercises solitary dominion."

The right granted to Japanese subjects consists in the privilege of

2 Article I.

8 See Article I of protocol.

4 Id.

5 See case of The Alleganean, Second Court of Commissioners of Alabama Claims, Stetson v. United States, No. 3993, Class I; Moore, Inter. Arbitrations, IV, 4332-4341.

Compare Direct United States Cable Company v. Anglo-American Tel. Co. (1877), L. R. 2 App. Cases, 394; Reg. v. Cunningham, Bell's C. C., 72; Mortensen v. Peters, 8 Fraser, 93.

6

leasing at public auction so-called fishing tracts. Fishing, however, for whale or cod, or other fish which can not be taken within special tracts, is given to such subjects on sea-going vessels provided with special permits. Within the licensed tract the lessees are given free use of the coast for numerous purposes, such as that of making repairs, salting, drying, and preparing of fish, as well as of erecting cabins and storehouses. Furthermore, no restriction is made as to the nationality of the person to be employed by the lessees," except in tracts in the "Liman of the Amour." 10

Russia agrees to accord equal treatment to Japanese and Russian subjects regarding imposts or taxes levied on the fishing industry; 11 and expressly contracts not to collect duties on fishing products intended for export to Japan.12 Russia retains the right to make necessary laws and regulations concerning the protection and culture of fish, subject to

See also A. H. Charteris, "Territorial Jurisdiction in Wide Bays," Proceedings of International Law Association, twenty-third report, 1906, 103.

The opinion of Mr. Bates, umpire, in the case of The Washington, under convention between the United States and Great Britain of February 8, 1853, in denying that the Bay of Fundy was a British bay adverted to the fact that one of the headlands thereof was in the United States. (Moore, Inter. Arbitrations, 4342, 4344.) The precise problem before the umpire was whether that body of water was a "bay" within the meaning of the word as used in the treaties of 1783 and 1818. It is to be observed that the issue between the United States and Great Britain with reference to the proper signification of the term "bays," as employed in article 1 of the treaty of 1818, is unrelated to the question as to the extent of bays over which a state may, according to international law, exercise control.

Compare article 1, fishery convention between Great Britain and France of 1867, N. R. G., XX, 455; Art. II of North Sea Convention, May 6, 1882, N. R. G., 2d series, IX, 556, 557; sec. 1, art. 2, treaty between Spain and Portugal, Oct. 2, 1885, N. R. G., 2d series, XIV, 77, 78.

See also resolution of the Institute of International Law (1894-1895) with reference to the extent of control which a state should be permitted to exercise over adjacent waters, and particularly the preamble and article 3, with reference to bays. Annuaire, XIII, 328, 329.

See also communication of Mr. Olney, Secretary of State, to Mr. de Weckerlin, Dutch Minister, February 15, 1896. Ms. Notes to the Netherlands, VIII, 359; Moore Inter. Law Dig., I, 734.

6 Article II.

7 Id.

8 Article III.

9 Article VI.

10 Reciprocal declarations, Article II.

11 Article IV.

12 Article V.