262 
BULLETIN OF THE UNITED STATES FISH COMMISSION. 
Kegarding the question raised by Mr. Crowell respecting the authority of the States over navi- 
gable waters within their boundaries, and the opinion giveii thereon by the Solicitor of the Treasury, 
I have the honor to state that, in my opinion, it is clearly not the province of the Fish Commissioner 
to discuss purely legal questions, such as the constitutionality of the act of February 28, 1887, or the 
right of Congress to limit, regulate, or control fisheries within the j iirisdictional waters of the States. 
Anything, therefore, which I may write concerning the respective rights of the United States and the 
several States should not he taken as an expression of opinion, hut more for the purjiose of calling 
your attention to the various phases of the question as bearing upon the fisheries. 
If the claim is correctly made by Mr. Crowell that “the United States has no authority over the 
fisheries in the waters within the limits of each State,” and this has been supported by decisions of 
the Supreme Court of the United States, then it would appear that the General Government can place 
Jio restriction upon the use of any form of apparatus for the capture of mackerel within such limits, 
and the species may legally be taken at any time in gill nets, seines, or other movable fishing gear, 
operated near the land, as well as in “traps or weirs connected with the shore.” 
It must also l)e conceded that the United States has no authority to prohibit or control the catch- 
ing of mackerel in traps or weirs located within the jurisdiction of a State, whether the apparatus is 
“connected with the shore” or not. 
The authorities cited by the Solicitor of the Treasury, and the views expressed by him, support 
the contention of Mr. Crowell. He says: 
The rights of the several States over their navigable waters with regard to fisheries are, as have been seen, well 
deflne<l by tlie highest judicial construction. And there is nothing in the act of February 27, 1887, to indicate that 
Congress intended to interfere witli such riglits, hut rather * * * that it was intended to protect such fish (mackerel) 
during the sp.awning season in m,aritiiue waters not within the jurisdiction and control of States. 
Accepting this view of the case, rulings of the Treasury Department would he noneffective, so 
far as relates to mackerel caught inshore along the coasts of the several States, and such rulings can 
he applied only to mackerel imported from foreign countries. 
Here it may be proper to refer to the paragra2Jh of your letter of May 13, 1889, to the Solicitor, in 
which you state that, by a decision of the Treasury Department of May 23, 1888, “mackerel ‘caught 
in twine nets attached to the shore straight line’ were not entitled to entry under the act.” 
This decision was evidently correct, insomuch as it apiilied to fish imported from foreign coun- 
tries, and the straight “twine nets” in which they were taken were apparently gill nets, and would 
not come under the classification of “traps and weirs” specified in the act. 
However, the resiiective rights of the General Government and the States in the control of the 
ifishore fisheries appear to be not always clearly defined. In opposition to the propositions so ably 
set forth by the Solicitor of the 'freasury may be mentioned the well-known historical fact that the 
General Government has on more than one occasion assumed control over the inshore fisheries of 
certain States to the extent of concluding treaties with foreign nations whereby the citizens of those 
countries wore granted the right to jjarticipate in the littoral fisheries of the States (with the excep- 
tion of shell fisheries) without any specified restriction as to the season or form of apparatus to he 
employed, and without being amenable to State laws relating to the fisheries. 
Notable among such treaties are the so-called “Eecijirocity Treaty ’’concluded with Great Britain 
in 1854, and also the Washington Treaty, negotiated with the same Government in 1871. 
[Secretary of the Treasury to Mr. A. F. Crowell, Boston, Mass., July 5, 1897.] 
Your communication of May 6 last, requesting a further ruling by the Department as to the 
meaning of that part of the act of February 28, 1887, relative to the importing and landing of mackerel 
caught during the spawning season, which reads, “Provided, however, nothing in this act shall be held 
to apply to mackerel caught with hook and line from boats and landed in said boats, or in traps or 
weirs connected with the shore,” was duly received and has been carefully considered, and in rejilying 
I have to state that the Department must decline at this time to make any other or furtlier ruling as 
to the ajijilication of said act than has been promulgated. 
