SPHERE OF FEDERAL GOVERNMENT 



37 



After re-argument but before a decision had been given, 

 the State Department 14 in 1916 concluded a treaty with 

 Canada protecting migratory birds. The government's ap- 

 peal from the decision of the Arkansas District Court was 

 dismissed on the motion of the Attorney General and thus 

 the Supreme Court never decided the Shauver case. 15 



In July 1918 Congress pursuant to the treaty enacted the 

 Migratory Bird Treaty Act 16 and under it the Department 

 of Agriculture has from time to time issued enforcing regu- 

 lations. The constitutionality of the 1918 Act having been 

 contested on its enforcement, five federal district courts, in- 

 cluding that for the district of eastern Arkansas, which had 

 held the 1913 Act unconstitutional, now uniformly held the 

 1918 Act constitutional. 17 The Missouri v. Holland case 

 was carried to the Supreme Court on appeal and there the 

 Act of 1918 was held constitutional. 18 



Mr. Justice Holmes, who wrote the decision, gave a broad 

 interpretation to the treaty-making power of the national 

 government. He said that as the national government had 



14 See Senator Root's resolution, 62nd Cong., 3rd Sess., S. Res. 428 and 

 Senator McLean's resolution, 63rd Cong., ist Sess., S. R. 25. Also draft 

 of the proposed treaty by legal department of the American Game Pro- 

 tective Association in 1914-15. The story is current that this method 

 of dealing with the problem was first suggested by a young solicitor in 

 the State Department to a Justice of the Supreme Court who in turn 

 discussed it with the President. This individual has since become an 

 authority on International Law in one of the leading universities of the 

 country. 



15 See Professor Corwin's interesting article on this statute in 14 Mich. 

 Law 613 (1916) in which he attempts to prove that migratory birds come 

 under the commerce clause of the national constitution. 



16 40 Stat. L. 755. 



17 United States v. Thompson, 258 Fed. 257 (1919) ; United States v. 

 Samples, 258 Fed. 479 (1919); United States v. Selkirk, 258 Fed. 775 

 (1919) ; United States v. Rockefeller, 260 Fed. 346 (1919) ; Missouri v. 

 Holland, 258 Fed. 479 (1919). 



18 Missouri v. Holland, 252 U. S. 416 (1919). 



