December 12, 1913] 



SCIENCE 



841 



It " cuts its own throat " so to speak, by its 

 own conscientiousness. This state will accord- 

 ingly wipe out the prohibition, and so every- 

 where the law of the state with the most elastic 

 conscience, becomes the law of all. One lenient 

 state drags down all the others, for the laws 

 protecting birds are competitive. So the birds 

 die hard, and the hordes of insects go on multi- 

 plying and enjoying themselves at our expense. 

 Up to this point there has been unanimity of 

 opinion. From now we tread on doubtful 

 ground. 



Senator McLean, of Connecticut, believes that 

 there must be an inherent right to protect one- 

 self against this scourge. But where does this 

 power lodge, in the federal or in the state 

 branch? Senator McLean argues that the ex- 

 perience of 125 years, with diverse, spasmodic 

 and crazy-quilt state laws has demonstrated 

 their failure, and has proven conclusively that 

 the power does not rest in the states. Their in- 

 ability to efficiently protect birds and the conse- 

 quent failure to reduce the insect pest, an ex- 

 periment carried on for 125 years, shows that 

 they do not possess this power. And some- 

 where, he contends, there must be lodged this 

 power of self-protection. The states do not 

 possess it; experience has so proven. There is 

 but one alternative, the national branch. On 

 this theory the national bird law was passed. 

 The theory might be stated in the following 

 form : " Whenever a particular power can not 

 be efficiently exercised by individual state 

 action, then that power is lodged in the 

 federal branch. There need be no specific 

 grant of power in the constitution, nor any 

 implication from granted powers. The fact 

 that diverse state action has failed proves it 

 to be a federal power." When Senator McLean 

 gave to the Senate the reasoning by which to 

 uphold the constitutionality of a national bird 

 law, to hold for migratory and insectivorous 

 birds, the senators had great doubts ; but as the 

 reform was very necessary they passed the 

 bill, shifting thereby a burden and possibly 

 public criticism on the court. 



A few excerpts from his speech of January 

 14, 1913, will state the legal reasoning by 

 which the law is to be upheld. He said: 



My contention is that congress has the implied 

 power as a natural and necessary attribute of its 

 sovereignty to provide for the common defense 

 and general welfare of the nation whenever the 

 need is general and manifest, and the subject is 

 such that no state, acting separately, can protect 

 and defend itself against the threatened danger or 

 secure to itself those benefits to which it is justly 

 entitled as a part of the nation. 



If the state, by exerting its authority, can se- 

 cure to its citizens the protection to which it is 

 justly and fairly entitled, there will be no need of 

 federal interference except as it may be comple- 

 mentary and at the request and with the approval 

 of the state, but if the need for assistance is mani- 

 fest, if the danger is real and general and it is 

 not within the power of a single state to protect 

 itself and secure the benefits and protection to 

 which it is justly entitled, then there is, as it 

 seems to me, no escape from the conclusion that 

 the common defense and general welfare of the 

 people must utterly fail unless the nation can 

 come to the rescue. 



Senator Borah declared : 



I do not think that the constitution of the 

 United States can be construed in the light of 

 the negligence of the states. Simply because the 

 states neglect to use their reserved powers consti- 

 tutes no reason why the national government 

 should assume to exercise unconstitutional powers. 



At another point Senator McLean said: 



I frankly said that I did not myself find au- 

 thority for it [the national bird law] in any ex- 

 press clause of the constitution, but I thought it 

 was one of the implied attitudes of sovereignty, 

 based upon the incompetency of any state to ac- 

 complish the results desired, and that it is abso- 

 lutely necessary that any nation worthy of the 

 name shall have this power. 



Senator McLean could cite no decision in 

 point on this novel theory. Yet the same 

 theory has been urged before and has been 

 by some called the Wilson rule of construc- 

 tion. In 1785 James Wilson used language 

 applicable to our constitution, though the argu- 

 ment was then made under the Articles of 

 Confederation. He said: 



Though the United States in congress assembled 

 derive from the particular states no power, juris- 



