THE SOUTHERN SPRING MACKEREL FISHERY. 
261 
Assistant Secretary Ticheuor, in his letter referring- the matter for an expression of my views, 
says : 
The questions now raised by Mr. Crowell relate to the authority of the States over navigable waters witliin their 
boundaries, and I will re.s|iectfully request a return of this letter with your views thereon. 
The riglit.s of the several States over navigable waters with regard to fisheries are, as we have 
seen, well defined by the highest judicial construction; and there is nothing in the act of February 
28, 1887, to indicate that Congress intended to interfere with such rights, hut rather, by the use of the 
words “no mackerel, other than what is known as Spanish mackerel * * * shall he imported into 
the United States or landed upon its shores,’’ that it was intended to protect such fish during the 
spawning season in maritime waters not within the jurisdiction and control of the States. Synopsis 
8864 does not appear to be inconsistent with this construction. As to the constitutionality of said act 
it is not the province of this office to determine. 
[Conimis.sioner of Fish and Fisheries to the Assistant Secretary of the Treasury, June 24, 1889.] 
I have given careful consideration to your letter of June 14, 1889, and the accompanying corre- 
spondence, relating to the proper definition to be placed upon the words “traps and weirs connected 
with the shore,” which occur in the act of Congress of Ifebruary 28, 1887, and also containing certain 
propositions concerning the right of Congress to limit or control littoral fisheries in waters within the 
jurisdiction of a State or States. 
As to the construction of the clause “traps or weirs connected with the shore,” it is difficult to 
see how a strict interpretation of the words can dift'er from the meaning given to them in my letter 
of May 23, 1888, addressed to Hon. I. H. Maynard, Assistant Secretary of the Treasury. The proper 
construction of this clause depends upon the definition of the word “shore.” If it is held that the 
shore goes beyond low-water mark, it will apparently be necessary to show to what distance it extends 
beneath the sea— that is, how far from mean low water fishing apparatus may be situated and still be 
“connected with the shore.” 
It is doubtless true, as claimed by Mr. Crowell, that it is a hardship upon the trap and weir 
fishermen to compel them in all cases to extend leaders from their apparatus to the shore, and thereby 
incur additional and otherwise uncalled-for expense. It is also ([uite supposable that the intent 
of Congress was not to place any uunecessary burden upon these fishermen. 
Taking this view of the case, it may perhaps he assumed that the words “traps and weirs 
connected with the shore” were intended to apply to traps and weirs built out from the shore — along 
the coast near the land — as fixtures by driving stakes into the bottom or otherwise firmly securing 
the apparatus to the ground, and that this method of construction was considered by Congress suf- 
ficient “connection with the shore,” even though the section of a trap or weir nearest the land might 
be several hundred feet distant from the line of mean low water. It is known to the Commission that 
in some localities, where the water is shallow, the inner ends of leaders to such devices are a mile or 
more distant from the shore, since no benefit can accrue to the fishermen by extending them farther 
landward. 
'faking into consideration the whole tenor of the act referred to, it is not difficult to infereu- 
tially assume that it was the chief object of Congress to prohibit purse-seine fishing for mackerel 
(other than the Spanish mackerel) during their migratory period, when they are gravid and seeking 
their spawning grounds, and that the purpose was not to put any harsh restriction upon trap or weir 
fishermen, who generally take mackerel only incidentally, since their apiiaratus is built for the capture 
of other species. 
The fact that it is clearly not in the power of these fishermen to prevent mackerel from entering 
their apparatus with other kinds, and that to throw them away after having been caught would be 
wantonly wasteful, without accomplishing any good purpose, no doubt had its influence in inducing 
Congress to permit the landing of all fish of this species taken in traps and weirs during the “close 
season.” 
Bnt while the above assumptions appear to bo well founded, and while it would be gratifying to 
see the fishermen relieved from any nnnecessary hardship by a liberal ruling, I nevertheless can not 
venture to put a construction upon a law that does not seem to be fully justified by the words 
employed by Congress. To hold that the word shore, as used in the act under consideration, means a 
mile (or any other distance) from the shore lino at mean low water would be taking a responsibility 
which seems unwarranted. 
