ARGUMENT OF JOHN S. EWART. 1391 



cidedly settled by the United States decisions. The other, as far as 



1 am aware, still remains unsettled. 



The first point is as to the ownership of the fisheries, and the right 

 to regulate them. Did the constitution of the United States leave the 

 fisheries with the individual States, together with the power to regu- 

 late them, or was the effect of the constitution to transfer both owner- 

 ship and regulation to the United States ? As to this, it has been very 

 clearly and conclusively held that both ownership and regulation were 

 left with the individual States. 



The other question, as to whether free fishing to all citizens of the 

 United States remained, has not, so far as I am aware, been settled. 

 If it has, it has been in very recent times not, at all events, until 

 1890 the date of a decision I will refer the Tribunal to. 



There is a clause in the United States constitution which bears 

 upon the point and has been discussed a good deal. Article 4, section 



2 of the present constitution of the United States (very similar to a 

 provision in the constitution of 1778) is as follows: 



" The citizens of each State shall be entitled to all privileges and 

 immunities of citizens in the several States," 



840 And the question, under the construction of that clause, was 

 whether the citizens of every State had the right to fish in 

 common with the citizens of each particular State. 



I wish now to refer the Tribunal to two cases decided in the Massa- 

 chusetts Court, in which this latter question was left undetermined; 

 in which the assumption was made that the citizens, say of Rhode 

 Island, had a right to go and fish in Massachusetts waters; and in 

 which the question was, there being that right of free fishing on the 

 part of all citizens of the United States in Massachusetts waters, 

 what right had Massachusetts to make regulations? The cases are 

 perfectly in point, but I think the Tribunal will agree that they are 

 so nearly in point that they will be of some assistance ; and, as I read 

 from the decisions, the language will be found to be very apposite. 



The first case I refer to is Dunham v. Lamphere, 3 Gray 268. Cop- 

 ies of this decision are being handed to the members of the Tribunal. 



The decision will be seen to cover several points. 



In the first place, that the ownership and power to regulate are in 

 the State. 



Secondly, that the State may regulate a common fishery by non- 

 discriminatory laws, even if, as the case assumes, there existed a right 

 of free fishing on the part of the citizens of other States. 



The third point decided, perhaps not necessary for use now, is that 

 the United States enrolment of vessels would not affect the right to 

 regulate. 



92909 S. Doc. 870, 61-3, vol 10 32 



