711.428/586a
The Secretary of State to Senator Henry Cabot Lodge
Sir: On September 3, 1919, there was transmitted to the Senate, through the President, a Convention for the protection, preservation, and propagation of Salmon in the waters contiguous to the United States and the Dominion of Canada, concluded between the United States and Great Britain on September 2, 1919.
[Page 237]Article II of the Convention, containing the clause, “each of the High Contracting Parties may, by appropriate legislation, provide for the trial, conviction, and punishment within its jurisdiction of any person found there who has contravened any of the provisions of this Convention and/or said regulations within the jurisdiction of the other High Contracting Party, and who has not been punished for such offense within the latter jurisdiction,” has been criticised as not providing a means for obtaining evidence in one country for use in trials in the other, and as not excluding the trial and punishment on one side of the boundary of a person charged with a crime for which he has been acquitted on the other side. This clause was a matter of considerable discussion at the time the treaty was negotiated. In one draft, provision was made for the taking and admission of evidence, but it was subsequently thought that this matter could better be provided for in legislation by each of the High Contracting Parties, particularly as legislation will be necessary in any event if this clause is to be availed of.
On further consideration, I entertain the view that this clause of the Article should be redrafted in order to provide more fully for the admission of evidence in one country which has been obtained in the other country, and to prevent the same person from being tried in one country for an offense for which he has been tried and punished or acquitted in the other country. I am, therefore, considering asking the President in the near future to withdraw the treaty in order that this clause may be renegotiated. I should be pleased to have for my use in such negotiations any suggestions which members of the Foreign Relations Committee may wish to express informally with respect to the clause in question.
The objection has also been made that an American citizen who is tried in Canada for an offense committed in the United States, under the provisions of this section, would be deprived of a trial by jury. I do not think this is a valid objection to the clause, since an American citizen tried abroad under a jurisdiction conferred by treaty is not entitled to a trial by jury, unless the laws of the country grant it. In this relation reference may be made to In re Ross, 140 U.S. 435.
As to the question which has been raised regarding the right of the United States to enter into a treaty controlling the fisheries of the navigable waters within the jurisdiction of a state, three different District Courts of the United States have recently rendered decisions which bear on this point. These cases upheld the constitutionality of a Federal statute for the protection of migratory birds (40 Stats. 755) enacted in execution of the provisions of the migratory [Page 238] birds treaty with Great Britain, signed August 16, 1916 (39 Stats. 1702). (U.S. v. Thompson, 258 Fed. 257; U.S. v. Samples, 258 Fed. 479; U.S. v. Selkirk, 258 Fed. 775). The court that decided U.S. v. Thompson had held, in a case which arose prior to the execution of the treaty, that a practically identical statute then in existence was unconstitutional (U.S. v. Shawver, 214 Fed. 154), but in the Thompson case the judge held that the later statute having been enacted in execution of a treaty, was constitutional.
I have [etc.]