The New York herald., 1922-11-26
Ua. Congress- the Power TO Enact Law for
the Control OF Marine Fisheries?

By CHARLES DRESCHER, Counselor U. A. l..
Third--Has Congress the right 70 regulate
fisheries under the treaty making power VI
The treaty making power IS clearly and un-
doubtedly in the exclusive province OF the
Federal Government. 4
alliance or confederation.--Tnited states
Constitution. Article ]. Section 10
The regulation Of fisheries, which IKE
game. are deemed TO be held ~ absolute con
troll by the states-94 ". S. 30i, l52 U. y:
i33-has always been proper subject OF
United States treaties, q opinions OF Attor-
ney-Generai 2l4. On March ~. isO2. a con-
ventlon was entered into by the governments
of France, Germany, Austria Hungary, Bel
gium, spain. Greece. Monaco and others Tor
the protection of migratory birds pecessary
for agriculture. II would be odd, to-say the
least, that Monaco In It's sovereign capacity
could accomplish what the United states
Government could not.
The fathers OF our country foresaw. that
to have concurrent jurisdiction between
state and nation In regard 10 treaty making.
would deprive tho Federal Government OF
that ability 20 exercise sovereignty Inherent
In an independent nation. II might be de-
sirable to afford citizens OF q nation con-
tracing treaty with the United States
rights to take fish with the three mile limit
on our sea coasts, In return for privileges OF
a like character reserved 10 citizens or the
United States. II State could similarly
contract and legislate thereon then acts OF
the Federal Government might be nuilified.
In United States V. ~ Gallons OF WHISKY,
o3 u. $. fSS. the court held:
and Il cannot be doubted that the treaty
making power is ample 20 cover all the
usual subjects OF diplomacy with different
powers. One of these subjects relates 70 the
acquisition and distribution ot properly be-
longing to THE citizens and subjects OF each
In the territory Of the other. a treaty ein-
hrncing this matter may contrayene tpe
statutes Of State, but II u does, the courts
would disregard them and give TO the allen
the full protection accorded him, by the
treaty"
dent tud the Senate nlay contract treaties
only where the subicct matter. Is one OF
diplomacy or cf internatiopal negotiation.
Citizens of the various States cannot. by any
stretch OF the imagination be made the sub.
sect matter OF diplomacy or OF International
negotiation In affairs involving Local mat,
Government could exercise functions OF the
local legislatures over citizens OF the re-
speciiye states. The treaty making power
fishing among the several States than the
right 10 regulate and change tho laws OF
descent or OF domestic relations.
Fourth-Does state control OF fisheries In
fringe the admiralty aud maritime turisdlc-
tIon OF the United states.
Article H.. section 2. OF the Federal con-
'aThe judiclai power shall extend TO all
eases of admiralty and maritime jurfsdie-
ton"
The question OF the regulation Of fisheries
vision az tho Constitution was specifically
raised IN tho Mancliertcr case Ia the follow
ing words Of the opinion:
'UpOn the question of the admiralty, wa
consider Il 60 have bccn settled BY this
court IN United states " Deyans,s that this
clause In the Constitution did not affects the
iurisdictlons. nor the legislative power OF
the States. over 30 much OF their territory
as Hes below high vrter mark, save that
they parted with the power 40 10 lcgislate
rs 70 conflict with the admiralty iurisdic-
tion or the laws OF the United Statcs As
this law conflicts neither .with fhe admiralty
Jurisdiction OF any court Of the United
states conferred by Congress, nor with any
law OF Congress whatever. we are OF opinion
Il Is not repuerant TO this clause os the
Constitution.
al. it was decided that tho power over
fisheries was not SURRENDERED by the states
IN granting the admiralty and maritime
power TO Congress.
In the Devan case. the surrcne cour.