38 PROBLEMS IN WILD LIFE CONSERVATION 



definitely been delegated the power to make treaties by the 

 constitution itself, it was not enough to urge the tenth 

 amendment as a limitation upon it in this case. Nor was it 

 a proper test to say that what Congress could not do by 

 ordinary law, a treaty could not do because acts of Congress 

 are the supreme law of the land only when made in pur- 

 suance of the constitution, while treaties are declared to be 

 so when made under the authority of the United States. 

 This treaty did not contravene any prohibitory clause of the 

 constitution. It dealt with a subject recognized by inter- 

 national custom as a proper one for treaties. Therefore, it 

 was valid and the law carrying it into effect was consti- 

 tutional. 



Turning to the argument that the state in its sovereign 

 capacity owned animals ferae naturae. Justice Holmes said 

 that although the state's title stood as against the right of an 

 individual, it could not be said to prevent the national gov- 

 ernment from exercising its right to make treaties regulating 

 the subject. 19 



Conservation of the Sponge Fisheries under the Com- 

 merce Clause: Congress to protect the sponge industry off 

 the coast of Florida passed an act on June 20, 1906 20 pro- 

 hibiting the taking, curing, landing, or sale of sponges under 

 a certain size or during specified closed seasons. In viola- 

 tion of this act the vessel Abby Dodge gathered sponges and 

 landed them at the port of Tarpon Springs, Florida, in Sep- 



19 Held in United States v. Lumpkin, 276 Fed. 580 (1921), that the 

 treaty plainly does not attempt to protect non-migratory birds, but the 

 fact that there may be individual birds of the species that do not migrate 

 does not affect the validity of the treaty nor act passed pursuant to it. 

 Subsequent cases held that treaty was not retroactive and would not 

 apply to birds killed before it went into effect. United States v. Fur 

 Store Co., 262 Fed. 836 (1920) ; and United States v. Marks, 4 Fed. 

 (2nd) 420 (1925). 



20 34 Stat. L. 313. 



