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Bird - Lore 



fications to the treaty-making power; but 

 they must be ascertained in a different 

 way. It is obvious that there may be mat- 

 ters of the sharpest exigency for the 

 national well-being that an act of Congress 

 could not deal with, but that a treaty fol- 

 lowed by such an act could, and it is not 

 lightly to be assumed that, in matters re- 

 quiring national action, 'a power which 

 must belong to and somewhere reside in 

 every civilized government' is not to be 

 found. Andrews v. Andrews, iS8 U. S. 14, 

 :i:^. What was said in that case with re- 

 gard to the powers of the States applies 

 with equal force to the powers of the na- 

 tion in cases where the States individually 

 are incompetent to act. We are not yet 

 discussing the particular case before us 

 but only are considering the validity of the 

 test proposed. With regard to that we may 

 add that when we are dealing with words 

 that also are a constituent act, like the 

 Constitution of the United States, we 

 must realize that they have called into 

 life a being the development of which 

 could not have been foreseen completely 

 by the most gifted of its begetters. It was 

 enough for them to realize or to hope that 

 they had created an organism; it has taken 

 a century and has cost their successors 

 much sweat and blood to prove that they 

 created a nation. The case before us must 

 be considered in the light of our whole ex- 

 perience and not merely in that of what 

 was said a hundred years ago. The treaty 

 in question does not contravene any pro- 

 hibitory words to be found in the Consti- 

 tution. The only question is whether it is 

 forbidden by some invisible radiation 

 from the general terms of the Tenth 

 Amendment. We must consider what this 

 country has become in deciding what that 

 amendment has reserved. 



The State as we have intimated founds 

 its claim of exclusive authority upon an 

 assertion of title to migratory birds, an 

 assertion that is embodied in statute. No 

 doubt it is true that as between a State 

 and its inhabitants the State may regu- 

 late the killing and sale of such birds, but 

 it does not follow that its authority is ex- 

 clusive of paramount powers. To put the 

 claim of the State upon title is to lean 

 upon a slender reed. Wild birds are not 

 in the possession of anyone; and possession 

 is the beginning of ownership. The whole 

 foundation of the State's rights is the pres- 

 ence within their jurisdiction of birds that 

 yesterday had not arrived, tomorrow may 

 be in another State and in a week a thou- 

 sand miles away. If we are to be accurate 

 we cannot put the case of the State upon 



higher ground than that the treaty deals 

 with creatures that for the moment are 

 within the state borders, that it must be 

 carried out by officers of the United States 

 within the same territory, and that but 

 for the treaty the State would be free to 

 regulate this subject itself. 



As most of the laws of the United States 

 are carried out within the States and as 

 many of them deal with matters which in 

 the silence of such laws the State might 

 regulate, such general grounds are not 

 enough to support Missouri's claim. Valid 

 treaties of course 'are as binding within 

 the territorial limits of the States as they 

 are effective throughout the dominion of 

 the United States.' Baldwin v. Franks, 

 120 U. S. 678, 683. No doubt the great 

 body of private relations usually fall within 

 the control of the State, but a treaty may 

 override its power. We do not have to 

 invoke the later developments of consti- 

 tutional law for this proposition; it was 

 recognized as early as Hopkins v. Bell, 

 3 Cranch. 454, with regard to statutes of 

 limitation, and even earlier, as to confisca- 

 tion, in Ware v. Hylton, 3 Dall. 199. It 

 was assumed by Chief Justice Marshall 

 with regard to the escheat of land to the 

 State in Chirac v. Chirac, 2 Wheaton, 

 259, 27^. Hauenstein v. Lynham, 100 

 U. S. 483. Geoffroy v. Riggs, 133 U. S.. 258. 

 Blythe v. Hinckley, 180 U. S. 333, 340. 

 So as to a limited jurisdiction of foreign 

 consuls within a State. Wildenhus' Case, 

 1 20 U. S. I. See Rossz). Mclntyre, 140 U. S. 

 453. Further illustration seems unneces- 

 sary, and it only remains to consider the 

 application of established rules to the 

 present case. 



Here a national interest of very nearly 

 the first magnitude is involved. It can be 

 protected only by national action in con- 

 cert with that of another power. The sub- 

 ject matter is only transitorily within the 

 state and has no permanent habitat therein. 

 But for the treaty and the statute there 

 soon might be no birds for any powers to 

 deal with. We see nothing in the Consti- 

 tution that compels the Government to sit 

 by while a food supply is cut off and the 

 protectors of our forests and our crops are 

 destroyed. It is not sufficient to rely upon 

 the States. The reliance is vain, and were 

 it otherwise, -the question is whether the 

 United States is forbidden to act. We are 

 of opinion that the treaty and statute must 

 be upheld. Gary v. South Dakota, 250 

 U. S. 118. 



Decree affirmed. 



Mr. Justice Van Devanter and Mr. 

 Justice Pitney dissent. 



