American Big Game in its Haunts 



of game, even though the entry upon the reserve is not for 

 that purpose. But, the right to forbid intrusion for the pur- 

 pose of killing, per se, and without reference to any trespass 

 on the property, is another. The first may be forbidden as 

 a trespass and for the protection of the property; but when 

 a person is lawfully there and not a trespasser or intruder, 

 the question is different. 



"But I am decidedly of opinion that Congress may forbid 

 and punish the killing of game on these reserves, no matter 

 that the slayer is lawfully there and is not a trespasser. If 

 Congress may prohibit the use of these reserves for any 

 purpose, it may for another; and while Congress permits 

 persons to be there upon and use them for various purposes, 

 it may fix limits to such use and occupation, and prescribe 

 the purpose and objects for which they shall not be used, 

 as for the killing, capture or pursuit of specified kinds of 

 game. Generally, any private owner may forbid, upon his 

 own land, any act that he chooses, although the act may 

 be lawful in itself; and certainly Congress, invested also with 

 legislative power, may do the same thing, just as it may 

 prohibit the sale of intoxicating liquors, though such sale 

 is otherwise lawful. 



"After considerable attention to the whole subject, I have 

 no hesitation in expressing my opinion that Congress has 

 ample power to forbid and punish any and all kinds of tres- 

 pass, upon or injury to, the forest reserves, including the 

 trespass of entering upon or using them for the killing, 

 capture or pursuit of game. 



"The exercise of these powers would not conflict with any 

 State authority. Most of the States have laws forbidding 

 the killing, capture or pursuit of different kinds of game 

 during specified portions of the year. This makes such kill- 

 ing, etc., lawful at other times, but only lawful because not 

 made unlawful. And it is lawful only when the State has 

 power to make it lawful, by either implication or direct en- 

 actment. But, except in those cases already referred to, such 

 as eminent domain, service of process, etc., no State has 

 power to authorize or make lawful a trespass upon private 



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